SYBIL LOBO, PUNE v. ITO WD 26(2), MUMBAI

ITA 3569/MUM/2009 | 2004-2005
Pronouncement Date: 11-03-2011 | Result: Allowed

Appeal Details

RSA Number 356919914 RSA 2009
Assessee PAN ABFPA7757C
Bench Mumbai
Appeal Number ITA 3569/MUM/2009
Duration Of Justice 1 year(s) 9 month(s) 10 day(s)
Appellant SYBIL LOBO, PUNE
Respondent ITO WD 26(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 11-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 11-03-2011
Date Of Final Hearing 17-02-2011
Next Hearing Date 17-02-2011
Assessment Year 2004-2005
Appeal Filed On 01-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI BEFORE SHRI R V EASWAR PRESIDENT AND SHRI B RAMAKOTAIAH ACCOUNTANT MEMBER I T A NO: 3569/MUM/2009 (ASSESSMENT YEAR: 2004-05) MRS SYBIL LOBO MUMBAI APPELLANT (PAN: ABFPA7757C) VS INCOME TAX OFFICER 26(2)(1) MUMBAI RESPONDENT APPELLANT BY: MR D Y PANDIT RESPONDENT BY: MRS MALATHI SRIDHARAN O R D E R R V EASWAR PRESIDENT: THIS IS AN APPEAL FILED BY THE ASSESSEE CHALLENGIN G THE PENALTY OF ` 1 50 437/- LEVIED ON HER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT 1961 FOR THE ASSESSMENT YEAR 2004- 05. 2. THE BRIEF FACTS GIVING RISE TO THE APPEAL AR E AS FOLLOWS. THE ASSESSEE AT THE RELEVANT TIME WAS AN EMPLOYEE OF BHARAT PETROLEUM CORPORATION LIMITED (HEREINAFTER REFERRED TO AS BPCL). SHE FILED A RETURN OF INCOME DECLARING INCOME OF ` 6 04 790/- IN RESPONSE TO NOTICE ISSUED UNDER SECTION 148 OF THE ACT. IN THE RELEVANT PREVIOUS YEAR THE ASSESSEE HAD RECEIVED LE ASE RENT OF ` 67 320/- FROM BPCL UNDER A LEASE ARRANGEMENT AND ` 20 358/- AS REIMBURSEMENT OF EXPENSES TOWARDS TAXES SOCIETY CH ARGES MINOR REPAIRS AND MAINTENANCE OF THE FLAT. IT WOULD APPE AR THAT THE ITA NO: 3569/MUM/2009 2 ASSESSEE DECLARED ` 40 311/- AS INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY AFTER ADJUSTING THE INTEREST P AID ON CAPITAL BORROWED. THE EMPLOYER NAMELY BPCL HAD CONSIDERE D THE PERQUISITE VALUE OF ` 42 310/- ON ACCOUNT OF THE HOUSE AND WITHOUT REALIZING THAT IT WAS ALREADY INCLUDED IN THE SALAR Y CERTIFICATE THE ASSESSEE HAD INCLUDED THE AFORESAID INCOME UNDER TH E HEAD INCOME FROM HOUSE PROPERTY. BE THAT AS IT MAY T HE ASSESSING OFFICER COMPLETED THE ASSESSMENT OF THE ASSESSEE BY ASSESSMENT ORDER PASSED ON 13.08.2007 BY INCLUDING THE SALARY INCOME OF ` 5 44 117/- AS ALSO THE PROPERTY INCOME OF ` 40 311/-. THE SALARY INCOME WAS TAKEN ON THE BASIS OF FORM NO.16 ISSUED BY BPCL. THE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEE DINGS FOR CONCEALMENT OF INCOME ON THE GROUND THAT IN THE ORI GINAL RETURN THE ASSESSEE DID NOT DISCLOSE THE PROPERTY INCOME OF ` 40 311/-. AFTER TAKING NOTE OF THE SUBMISSIONS OF THE ASSESSEE THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT THE ASSESSEE DI D NOT DECLARE THE PROPERTY INCOME TO THE EXTENT OF ` 87 678/- NAMELY THE LEASE RENT OF ` 67 320/- PLUS THE REIMBURSEMENT OF EXPENSES OF ` 20 358/- RECEIVED FROM THE EMPLOYER WHICH AMOUNTED TO CONCE ALMENT OF INCOME. HE ACCORDINGLY IMPOSED THE IMPUGNED PENALT Y. THE PENALTY HAVING BEEN CONFIRMED BY THE CIT(A) THE AS SESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 3. ON BEHALF OF THE ASSESSEE IT WAS SUBMITTED THAT THE ASSESSEE DID NOT CONCEAL HER INCOME AND THAT THE PE RQUISITE VALUE ADOPTED BY BPCL THE EMPLOYER IN FORM NO.16 INCLUD ED THE INCOME FROM THE HOUSE PROPERTY AND THUS STOOD INCLU DED IN THE ITA NO: 3569/MUM/2009 3 SALARY INCOME AND THE SAME WAS AGAIN SUBJECTED TO T AX AS PROPERTY INCOME IN THE ASSESSMENT ORDER AND THUS THERE WAS D OUBLE ASSESSMENT OF THE SAME INCOME. IT WAS FURTHER POIN TED OUT THAT THERE WERE SEVERAL ORDERS OF THE TRIBUNAL IN THE CA SE OF EMPLOYEES OF BPCL IN IDENTICAL CIRCUMSTANCES AND ON THE SAME ISSUE AND THE MUMBAI BENCHES OF THE TRIBUNAL HAVE CANCELLED THE P ENALTIES. A COMPILATION OF SUCH ORDERS WAS FURNISHED BEFORE US. THE LEAD ORDER APPEARS TO BE THE ORDER DATED 22.12.2009 IN T HE CASE OF SHRI RAVINDRA LAXMAN SATHE VS. ITO [ITA NO: 2828/MUM/200 8 ASSESSMENT YEAR 2001-02]. IN THIS CASE WHICH IS I DENTICAL ON FACTS AND IS ALSO THE CASE OF AN EMPLOYEE OF BPCL THE TR IBUNAL HAS CANCELLED THE PENALTY. THE LEARNED DEPARTMENTAL RE PRESENTATIVE AGREED THAT THE ISSUE IS FULLY COVERED BY THE AFORE SAID ORDER. SINCE ON IDENTICAL FACTS AND IN THE CASE OF OTHER EMPLOYE ES OF BPCL THE TRIBUNAL HAS CANCELLED THE PENALTY RESPECTFULLY FO LLOWING THE SAID ORDERS WE CANCEL THE PENALTY OF ` 1 50 437/- LEVIED BY THE ASSESSING OFFICER UPON THE ASSESSEE FOR CONCEALMENT OF INCOME AND ALLOW THE APPEAL WITH NO ORDER AS TO COSTS. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH 2011. SD/- SD/- (B RAMAKOTAIAH) (R V EASWAR) ACCOUNTANT MEMBER PRESID ENT MUMBAI DATED 11 TH MARCH 2011 SALDANHA ITA NO: 3569/MUM/2009 4 COPY TO: 1. MRS SYBIL LOBO C/O SHRI D Y PANDIT ADVOCATE 1187/10 KRUPA SHIVAJINAGAR PUNE 411 005 2. ITO 26(2)(1) MUMBAI 3. CIT-26 MUMBAI 4. CIT(A)-XXVI MUMBAI 5. DR J BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR ITAT MUMBAI