DR SHARAD HARIBHAU JADHAV, BHIWANDI v. ITO WD 1(4), MUMBAI

ITA 4726/MUM/2016 | 2009-2010
Pronouncement Date: 08-11-2017 | Result: Allowed

Appeal Details

RSA Number 472619914 RSA 2016
Assessee PAN ABCPJ1617K
Bench Mumbai
Appeal Number ITA 4726/MUM/2016
Duration Of Justice 1 year(s) 3 month(s) 25 day(s)
Appellant DR SHARAD HARIBHAU JADHAV, BHIWANDI
Respondent ITO WD 1(4), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 08-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted H
Tribunal Order Date 08-11-2017
Date Of Final Hearing 05-07-2017
Next Hearing Date 05-07-2017
First Hearing Date 05-07-2017
Assessment Year 2009-2010
Appeal Filed On 13-07-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH MUMBAI BEFORE SHRI SHAMIM YAHYA A M AND SHRI SANDEEP GOSAIN JM ./ I.T.A. NO. 4726/MUM/2016 ( / ASSESSMENT YEAR: 2009 - 10 ) DR. SHARAD HA RIBHAU JADHAV ASHWINI HOSPITAL FLAT NO. BLOCK NO. 7B/4 GOPAL NAGAR BHIWANDI / VS. ITO - 1(4) MOHAN PLAZA 1 ST FLOOR WAYLE NAGAR KALYAN (W) ./ ./ PAN/GIR NO. ABCPJ 1617 K ( / APPELLANT ) : ( / RES PONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI RAM TIWARI / DATE OF HEARING : 14.09.2017 / DATE OF PRONOUNCEMENT : 08.11 .2017 / O R D E R PER SHAMIM YAHYA A. M. : THIS APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2 THANE (CIT(A) FOR SHORT) DATED 22.04.2016 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2009 - 10. 2. T HE ISSUE RAISED IN THE APPEAL IS AGAINST THE LEVY OF PENALTY UNDER SECTION 271(1) (C) AMOUNTING TO RS.5 0 2 091 / - . 2 ITA NO. 4726/MUM/2016 (A.Y. 2009 - 10) DR. SHARAD HARIBHAU JADHAV VS. ITO 3. T HE ASSESSEE IN THIS CASE IS THE GENERAL PHYSICIAN . D URING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER FROM THE DETAILS OF BOOKS OF ACCOUNTS BANK ACCOUNTS ETC . SUBMITTED BY THE ASSESSEE OBSERVED THAT ASSESSEE HAS NOT DISCLOSED ONE BANK ACCOUNT IN HIS FINANCIAL STATEMENT. THIS BANK ACCOUNT CO NTAINED A CASH DEPOSIT OF RS. 19 30 000 / - . IN EXPLANATION THE R E OF THE ASSESSEE SUBMITTED THAT RS. 6 79 592 / - WAS HIS AGRICULTURAL INCOME AND BALANCE RS.1 2 50 408 / - WAS UNEXPLAINED PROFESSIONAL INCOME. THE ASSESSING OFFICER ACCEPTED THE CLAIM OF AGRICULTURAL INCOME BUT TREATED THE SUM OF RS. 12 50 408 / - CLAIMED TO HAVE BEEN HIS UNDISCLOSED PROFESSIONAL INCOME AS INCOME FROM UNDISCLOSED SOU RCES . PENALTY WAS LEVIED WITH REFERENCE TO THIS UNDISCLOSED INCOME AND INTEREST OF RS. 3 498 / - WAS CREDITED IN THE SAID UNDISCLOSED BANK ACCOUNT. OVER AND ABOVE PENALTY WAS ALSO LEVIED FOR ADDITION OF INTEREST AMOUNTING TO RS. 3 021 / - WHICH WAS REFLECTED I N THE 26AS STATEMENT . PENALTY UNDER SECTION 271 (1)(C) WAS LEVIED ON THESE FACTS FOR CONCEALMENT WHICH WAS CONF IRM ED BY LD. CIT(A). 4. UPON CAREFUL CONSIDERATION AND HEARING THE LEARNED DEPARTMENTAL R EPRESENTATIVE WE FIND THAT THIS IS NOT A CASE WHERE T HE ASSESSING OFFICER HAS RECEIVED SOME INFORMATION FROM OUTSIDE T HAT ASSESSEE IS HAVING AN UNDISCLOSED BANK ACCOUNT. THIS ASPECT WAS DISCOVERED BY THE ASSESSING OFFICER FROM THE DETAILS OF BANK ACCOUNTS SUBMITTED BY THE ASSESSEE HIMSELF DURING THE COURSE O F ASSESSMENT. IF THE ASSESSEE HAD INTENDED TO CONCEAL THIS BANK ACCOUNT HE WOULD NEVER SUBMIT THE DETAIL HIMSELF. MOREOVER THE ASSESSEE'S EXPLANATION OF AGRICULTURAL INCOME OUT OF THIS UNDISCLOSED 3 ITA NO. 4726/MUM/2016 (A.Y. 2009 - 10) DR. SHARAD HARIBHAU JADHAV VS. ITO DEPOSIT HAS BEEN ACCEPTED BY THE R EVENUE AND NO PENALTY F OR THIS HAS BEEN LEVIED. ON THE OTHER HAND THE OTHER CLAIM OF THE ASSESSEE OF THE BALANCE BEING UNDISCLOSED PROFESSIONAL INCOME HAS NOT BEEN ACCEPTED AND PENALTY HAS BEEN LEVIED ON THIS AMOUNT. IN OUR CAREFUL CONSIDERATION ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSEE CANNOT BE HELD TO HAVE COMMITTED ANY CONTUMACIOUS CONDUCT. ASSESSEE HAS HIMSELF SUBMITTED THE DETAIL OF THE SAID BANK ACCOUNT WITHOUT ANY DISCOVERY BY THE ASSESSING OFFICER. FURTHERMORE THERE IS NO REASON FOR GIVING ANY DIFFERENT TREATMENT TO THE ASSESSEES EXPLANATION OF UNDISCLOSED AGRICULTURAL INCOME AND UNDISCLOSED PROFESSIONAL INCOME. 5. IN THESE CIRCUMSTANCES ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN OUR CONSIDERED OPINION PENALTY LEVIED UNDER SECTION 271(1 )(C) IS NO T LEVIABLE IN THIS CASE AS THE ASSESSEES CONDUCT CANNOT BE SAID TO BE CONTUMACIOUS. FOR THIS PROPOSITION WE PLACE RELIANCE UPON THE HONBLE APEX COURT DECISION IN THE CASE OF HINDUSTAN STEELS LTD. V. STATE OF ORISSA [ 1972 ] 83 ITR 26 (SC) . ACCORDINGLY IN THE BACKGROUND OF AFORESAID DISCUSSION WE SET ASIDE THE ORDERS OF THE UTHORITIES BELOW AND DELETE THE LEVY OF PENALTY. 6. IN THE RESULT THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.11.2017 SD/ - SD/ - ( SANDEEP GOSAIN ) (S HAMIM YAHYA ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED :07.11.2017 4 ITA NO. 4726/MUM/2016 (A.Y. 2009 - 10) DR. SHARAD HARIBHAU JADHAV VS. ITO . . ./ ROSHANI SR. P S / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. / DR ITA T MUMBAI 6. / GUARD F ILE / BY ORDER / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI