PANDURANG M KOLI, PUNE v. ITO 26(2)(3), MUMBAI

ITA 5274/MUM/2010 | 2002-2003
Pronouncement Date: 28-09-2011 | Result: Allowed

Appeal Details

RSA Number 527419914 RSA 2010
Assessee PAN AAGPK7755A
Bench Mumbai
Appeal Number ITA 5274/MUM/2010
Duration Of Justice 1 year(s) 3 month(s) 3 day(s)
Appellant PANDURANG M KOLI, PUNE
Respondent ITO 26(2)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 28-09-2011
Assessment Year 2002-2003
Appeal Filed On 25-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH MUMBAI BEFORE SHRI B.R. MITTAL JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER ITA NO. 5274 TO 5276/MUM/2010 (ASSESSMENT YEAR: 2002-03 TO 2004-05) SHRI PANDURANG M. KOLI INCOME TAX OFFICER - 26(2)(3 ) C/O. MR. D.Y. PANDIT ADVOCATE MUMBAI 400002 1187/10 KRUPA SHIVAJINAGAR VS. PUNE 411005 PAN - AAGPK 7755 A APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI SHANTAM BOSE DATE OF HEARING: 15.09.2011 DATE OF PRONOUNCEMENT: 28.09.2011 O R D E R PER B. RAMAKOTAIAH A.M. THESE THREE APPEALS FILED AT THE INSTANCE OF THE A SSESSEE ARE DIRECTED AGAINST THE ORDERS DATED 23.09.2009 PASSED BY THE C IT(A)-XXVIII MUMBAI AND THEY PERTAIN TO THE ASSESSMENT YEARS 2002-03 2 003-04 AND 2004-05. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF A SSESSEE BUT AN APPLICATION VIDE LETTER DATED 14.09.2011 WAS FILED FOR ADJOURNMENT OF HEARING. THE BENCH REJECTED THE APPLICATION FOR ADJ OURNMENT AND DECIDED THE CASE EXPARTE APPELLANT. 3. THE ISSUE IN THESE CASES OF PENALTY IS THAT ASSESSE E FAILED TO INCLUDE THE LEASE RENT RECEIVED ALONG WITH MAINTENANCE CHAR GES ON THE HOUSE WHICH WAS SELF LEASED TO THE COMPANY( BPCL). IT WAS THE S TAND OF THE ASSESSEE THAT THE AMOUNT WAS INCLUDED AS PERQUISITES BY THE COMPA NY BUT THE A.O. MADE SEPARATE ADDITION AND LEVIED PENALTY IN ALL THESE Y EARS. BEFORE THE CIT(A) IT WAS CONTENDED THAT IN ALL THE EMPLOYEES CASES THE COMPANY HAS PROVIDED HOUSE ON SELF LEASE BASIS AND THE LEASE RENT WAS CO NSIDERED AS PERQUISITES IN THE SALARY WHILE THE MAINTENANCE CHARGES ARE REIMBU RSED ON EXPENDITURE WHICH CANNOT BE TAKEN AS INCOME. IT WAS THE SUBMISS ION THAT A RENT FREE ITA NO. 5274 TO 5276/MUM/2010 SHRI PANDURANG M. KOLI 2 ACCOMMODATION BY BPCL HAVING BEEN TREATED AS PERQUI SITES IN THE HANDS OF THE EMPLOYEE CANNOT AGAIN BE BROUGHT TO TAX AS INCO ME FROM HOUSE PROPERTY. IT IS ALSO THE SUBMISSION THAT THE A.O. H AS NOT EXCLUDED THE PERQUISITES AS THIS INCOME WAS INCLUDED IN THE SALA RY. JUST BECAUSE PART OF IT WAS SHIFTED TO HOUSE PROPERTY INCOME THERE CANNOT B E ANY PENALTY. THE CIT(A) HOWEVER DID NOT AGREE AND CONFIRMED THE PE NALTY. 4. BEFORE US IT WAS THE SUBMISSION THAT IN SIMILAR CAS ES ITAT MUMBAI BENCH HAS CONSISTENTLY TAKEN A STAND THAT PENALTY I S NOT LIVEABLE UNDER SECTION 271(1)(C) OF THE I.T. ACT UNDER THE PECULIA R CIRCUMSTANCE IN WHICH EMPLOYEES OF BHARAT PETROLEUM CORPORATION LTD. THE CASES ARE: - 1. MR. MANGHAL GAONKAR & OTHERS. VS. ITO ITA. NO. 5 879/MUM/2009. A BENCH 2. SHRI RAVINDRA L. SATHE VS. ITO ITA.NO. 2828/MUM/200 8 D BENCH 3. SMT. VERONICA J.CORREIA VS. ITO ITA.NO. 5986 5987 & 5988/MUM/2009 4. SHRI ADRIN J.AUGUSTINE VS. ITO ITA. NO. 1922 TO 192 4/MUM/2010 A BENCH 5. MR. KESHAVAN P. PILLAY VS. ITO ITA. NO. 1595/MUM/20 10 A BENCH 6. MR. VIKRAM BHIVAJI ZUMBRE VS. ITO ITA. NO. 2368/MUM /2010 F BENCH 7. WINSTON I. RODRIGUES VS. ITO ITA. NO. 1606. 1572 AN D 1574/MUM/2010 G BENCH 8. SHALESH R.PRAJAPATI VS. ITO ITA. NO. 1708/MUM/2010 D BENCH. 9. MR. DILIP N. PHATAK ITA. NO. 1931/MUM/2010 AND MR. RAJESH V. GAD ITA. NO. 1932/MUM/2010 D BENCH. 10. MR. CHANDRAKANT K. MAHADKAR ITA. NO. 1918 TO 1921/M UM/2010 C BENCH 11. SHRI RAJENDRA PRADHAN ITA NO.2933 2934 & 2935/MUM/ 2010 D BENCH 4. ON THE OTHER HAND LEARNED DR RELIED UPON THE ORD ERS PASSED BY THE TAX AUTHORITIES. 5. WE HAVE HEARD THE LEARNED D.R. AND PERUSED THE R ECORD. AS REGARDS THE LEVY OF PENALTY IT IS NOTICED THAT UNDER IDENT ICAL CIRCUMSTANCES THE ITAT MUMBAI BENCHES HAVE CONSISTENTLY TAKEN A STAND THAT UNDER THE CIRCUMSTANCES IT CANNOT BE SAID TO BE A CASE OF WIL FUL CONCEALMENT OF INCOME AND ACCORDINGLY CANCELLED THE PENALTY LEVIED BY TH E ASSESSING OFFICER. ITA NO. 5274 TO 5276/MUM/2010 SHRI PANDURANG M. KOLI 3 CONSISTENT WITH THE VIEW TAKEN THEREIN WE HOLD THA T IT IS NOT A FIT CASE FOR LEVY OF PENALTY. THEREFORE WE CANCEL THE PENALTY O F ` 10 135/- (A.Y. 2002-03) ` 48 223/- (A.Y. 2003-04) AND ` 15 694/- (A.Y. 2004-05). 6. IN THE RESULT APPEALS OF THE ASSESSEE ARE ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER 2011. SD/- SD/- (B.R. MITTAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED: 28 TH SEPTEMBER 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXVIII MUMBAI 4. THE CIT XXVI MUMBAI CITY 5. THE DR C BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.