Taunila Bansal, New Delhi v. ITO, New Delhi

ITA 976/DEL/2010 | 2005-2006
Pronouncement Date: 14-05-2010 | Result: Allowed

Appeal Details

RSA Number 97620114 RSA 2010
Assessee PAN EMBER2005D
Bench Delhi
Appeal Number ITA 976/DEL/2010
Duration Of Justice 2 month(s) 6 day(s)
Appellant Taunila Bansal, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 14-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 14-05-2010
Assessment Year 2005-2006
Appeal Filed On 08-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI K.D. RANJAN ACCOUNTANT MEMBER I.T.A NO. 976/DEL/10 ASSTT. YEAR 2005-06 TAUNILA BANSAL 63 DARYA GANJ NEW DELHI 110 002. VS. ITO WARD-30(2) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K.C. GUPTA CA RESPONDENT BY: SHRI N.K. CHAND SR. DR ORDER PER RAJPAL YADAV JM: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER OF LD. CIT(A) DATED 5 TH JANUARY 2010 PASSED FOR ASSTT. YEAR 2005-06 THE S OLITARY GRIEVANCE OF THE ASSESSEE IS THAT LD. CIT(A) HAS ERRED IN CON FIRMING THE PENALTY AMOUNTING TO RS. 18 651/- LEVIED U/S 271(1(C) OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HA S FILED HER RETURN OF INCOME ON 30 TH SEPTEMBER 2005 DECLARING AN INCOME OF RS. 3 25 607/-. IN THE ITA NO. 976/DEL/10 ASSTT. YEAR 2005-06 2 COMPUTATION OF INCOME ASSESSEE HAS APPENDED A NOTE T HAT SHE HAS EARNED A DIVIDEND INCOME OF RS. 1 91 995/-ON UNITS FROM MUTU AL FUNDS WHICH IS EXEMPT AND HAS NOT BEEN INCLUDED IN THE INCOME TAX RET URN AS PER SECTION 10(35)OF THE INCOME TAX ACT. ACCORDING TO THE ASSESS EE THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND A NOTICE DATED 9.8.2006 WAS ISSUED U/S 143 (2) OF THE ACT. IN RESPONSE TO THE NOTICE OF ASS ESSEE APPEARED BEFORE THE AO. ON 25 TH SEPTEMBER 2006. THE AO DIRECTED THE ASSESSEE TO PRODU CE DETAILS OF INCOME FROM HOUSE PROPERTY DETAILS OF BANK S TATEMENT FROM SAVING BANK ACCOUNT NO. 13746 WITH ORIENTAL BANK OF COMMERCE DETAILS OF SAVING BANK WITH CITYBANK AND ABN AMRO BANK AND THE DETAILS OF INTEREST FROM THE FIRM M/S. VINYL PRODUCTS NEW DELHI. THE ASSESSEE HAD FILED A REVISED STATEMENT OF INCOME WHEREBY SHE DISCLOSED A SHORT TER M CAPITAL GAIN OF RS. 1 29 979/-. ACCORDING TO THE ASSESSEE THIS AMOUNT R EPRESENT SHORT TERM CAPITAL GAIN OUT OF THE TOTAL RECEIPT OF RS 1 91 995/- AND T HE REST WAS THE DIVIDEND INCOME .THIS REVISED COMPUTATION OF INCOME WAS FILED ON 12 TH FEBRUARY 2007. IN THE OPINION OF AO ASSESSEE HAS CONCEALED THE PARTI CULARS OF INCOME. HENCE HE INITIATED PENALTY PROCEEDING U/S 271(1) (C). A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE U/S 274 READ WITH SECTION 271 (1) (C). THE ASSESSEE HAS FILED A DETAILED REPLY AND SUBMITTED THAT HE HAS F ILED THE RETURN WITHOUT TAKING ASSISTANCE OF ANY TAX CONSULTANT .SHE ALSO C ONTENDED THAT SHE IS AN EXISTING ASSESSEE SINCE1981 BUT WAS A VICTIM OF MISFO RTUNE. SHE WAS MARRIED IN 1987 BUT HER HUSBAND DIED IN 1989. ALMOST OVER A DE CADE SHE AGAIN MARRIED TO AN NRI SHRI ROHINTON SURTY ON 1.4.98 WHO WAS SETTLED IN DUBAI. SHE ITA NO. 976/DEL/10 ASSTT. YEAR 2005-06 3 ALSO SHIFTED FROM INDIA TO DUBAI IN 1999 BUT UNFORTUNA TELY THE MARRIAGE ALSO DID NOT WORK AND SHE GOT A DIVORCE THROUGH COURT ON 28.4.2004. SHE RECEIVED PERMANENT ALIMONY ON ACCOUNT OF DISSOLUTION OF THIS MARRIAGE. THE INCOME GENERATED FROM INVESTMENT OF SUCH AMOUNT IS THE SOUR CE OF HER LIVELIHOOD. THE AO HAS NOT ASKED ANY QUESTION WITH REGARD TO THE DIVIDEND INCOME WHOSE EXEMPTION WAS CLAIMED BY THE ASSESSEE. WHILE DIS CUSSING THE ISSUE WITH THE TAX CONSULTANT ON OTHER ISSUE SHE CAME TO K NOW ABOUT THE MISTAKE AND VOLUNTARILY FILED REVISED COMPUTATION. SHE HAS PO INTED OUT OTHER OMISSIONS IN HER COMPUTATION. THE AO WAS NOT SATISFIED WITH TH E EXPLANATION OF ASSESSEE. HE VISITED THE ASSESSEE WITH PENALTY AND I MPOSED A PENALTY OF RS. 18 651/-. 3. APPEAL TO THE CIT (A) DID NOT BRING ANY RELIEF TO T HE ASSESSEE. 4. BEFORE US LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THERE IS NO DELIBERATE ATTEMPT AT THE END OF ASSESSEE TO FURNISH I NACCURATE PARTICULARS OR CONCEAL THE PARTICULARS OF INCOME. THE REVISED COMPUTAT ION FILED BY THE ASSESSEE IS NOT AFTER THE ISSUANCE OF SHOW CAUSE NO TICE BY THE AO ON THIS ISSUE. THE AO HAS NOT CALLED FOR THE DETAILS IN RES PECT OF DIVIDEND INCOME. THE SHORT TERM CAPITAL GAIN WAS DISCLOSED BY THE ASSESSEE ONLY ON THE BASIS OF ADVICE RECEIVED BY HER FROM THE TAX CONSULTANT WHILE PREPARING THE REPLIES ON OTHER ISSUES. SHE FILED THE RETURN HERSELF WITHOUT TAKING HELP OF ANY EXPERT. SHE WAS UNDER THE IMPRESSION THAT NO TAX IS LIVEABLE ON T HE RECEIPT OF MUTUAL FUND. SHE HAS DISCLOSED THE DETAILS IN THE COMPUTATI ON OF INCOME FILED ITA NO. 976/DEL/10 ASSTT. YEAR 2005-06 4 ORIGINALLY. IN HIS SECOND FOLD OF SUBMISSION HE CONT ENDED THAT SECTION 271(1)(C) CONTEMPLATES TWO FACTS SITUATION I.E. ASSE SSEE HAS CONCEALED THE PARTICULARS OF INCOME AND WHERE THE ASSESSEE HAS FA ILED TO FURNISH ACCURATE PARTICULARS OF INCOME. THE FIRST SITUATION PROCEEDS O N THE GROUND THAT PARTICULARS OF INCOME HAVE NOT BEEN FURNISHED LATER PR OCEEDS ON THE FOOTING THAT SUCH PARTICULARS HAD NO DOUBT BEEN FURNISHED BY THE ASSESSEE BUT THE SAME FOUND INACCURATE. ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE BOTH THESE FACTS SITUATION CANNOT RUN TOGETHER AND THEY ARE MUTUALLY EXCLUSIVE. THE AO IN THE PENALTY ORDER HAS NOWHERE PROPOUNDED THE SPE CIFIC CHARGE AGAINST THE ASSESSEE. THEREFORE HIS ORDER DESERVES TO BE SET ASIDE. THE LD. COUNSEL FOR THE ASSESSEE TOOK US THROUGH THE ORIGIN AL COMPUTATION OF INCOME AVAILABLE AT PAGE 12 AND 13 OF THE PAPER BOOK AS WELL AS REVISED COMPUTATION OF INCOME AVAILABLE AT PAGE 17 TO 19 OF THE PAPER BOOK. HE ALSO APPRISED US WITH THE SHOW CAUSE NOTICE VIDE WH ICH AO HAS ENQUIRED THE ISSUES. ON THE STRENGTH OF THESE DETAIL HE PREYE D THAT PENALTY BE DELETED. LD. DR ON THE OTHER HAND OPPOSED THE PRAYER OF ASSESSE E. TAKING US THROUGH PAGE NO. 13 OF THE PAPER BOOK HE CONTENDED THAT ASSESSE E HAS SPECIFICALLY MENTIONED SECTION 10(35) UNDER WHICH SHE HAS CLAIMED EXEMPTION IN RESPECT OF DIVIDEND INCOME. TO UNDERSTAND THE OUTCOME OF THE SECTION 10 (33) (34) (35) IS A DIFFICULT PROCESS IF SHE CAN NARRATE THE SECTION IN HER COMPUTATION OF INCOME THAT WOULD INDICATE THAT EITHER SHE HAD OBTAI NED THE OPINION OF EXPERT OR SHE HERSELF IS WELL VERSED WITH THE INCOME TAX MATTERS. THUS IT CANNOT BE SAID THAT A BONAFIDE MISTAKE WAS COMMITTED BY THE AS SESSEE. WITH REGARD ITA NO. 976/DEL/10 ASSTT. YEAR 2005-06 5 TO THE OTHER ARGUMENTS OF THE LD. COUNSEL FOR THE AS SESSEE HE SUBMITTED THAT AO HAS ISSUED A DETAILED QUESTIONNAIRE. HE WAS IN TH E PROCESS OF SCRUTINISING THE ACCOUNTS OF ASSESSEE. SHE MIGHT HAVE DISCLOSED THE SHORT TERM CAPITAL GAIN UNDER THE APPRECIATION THAT HER STEP COULD COME TO THE KNOWLEDGE OF AO DURING THE SCRUTINY PROCEEDINGS. THUS IT CANNOT BE SAID THAT FILING OF REVISED COMPUTATION WAS A VOLUNTARILY STEP. WITH REGAR D TO THE ALTERNATIVE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE HE PO INTED OUT THAT AO HAS APPRISED THE ASSESSEE SPECIFICALLY THAT SHE FAILED TO INCLUDE A SUM OF RS. 1.29 979/- IN HER TOTAL INCOME. THIS AMOUNTS TO FURNI SHING OF INACCURATE AND INCORRECT PARTICULARS OF INCOME WHICH LEAD TO CONCE ALMENT OF INCOME. THUS THERE IS NO AMBIGUITY IN THE CHARGE REQUIRED TO BE EXPLA INED BY THE ASSESSEE. 5. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION A ND GONE THROUGH THE RECORD CAREFULLY. IT IS TRUE THAT ASSESSEE HAS BEEN FILING HER RETURN SINCE 1981. SHE HAS NARRATED HER PERSONAL DOMESTIC AFFAIRS AND TH E DIFFICULTIES FACED IN THE LIFE. SHE HAS FILED THE RETURN AND DISCLOSED TH E RECEIPT OF RS. 1 91 995/- ON UNITS FROM MUTUAL FUNDS. ALL THE TRANSACTIONS IN RESP ECT OF MUTUAL FUNDS UNITS WERE THROUGH BANKING CHANNEL. THE ONLY CONFUSION AT THE END OF ASSESSEE IS WHETHER GROSS RECEIPT RECEIVED BY HER ARE TO BE CLAIME D AS EXEMPT OR NOT. IN HER UNDERSTANDING RECEIPT FROM MUTUAL FUND WERE NOT TA XABLE WHEREAS IN LAW IT WAS ONLY A DIVIDEND INCOME ON SUCH UNITS WHICH C AN BE CLAIMED AS EXEMPT. LOOKING TO THE BACKGROUND OF ASSESSEE WE DO N OT SEE THAT THERE WAS ANY DELIBERATE ATTEMPT AT HER END FOR FURNISHING T HE INACCURATE ITA NO. 976/DEL/10 ASSTT. YEAR 2005-06 6 PARTICULARS. IT IS ALSO IMPORTANT TO NOTE THAT REVISED COMPUTATION WAS FILED BY HER VOLUNTARILY. THE AO HAD NOT ISSUED ANY SHOW CAU SE NOTICE IN RESPECT OF ALLEGED CLAIM OF DIVIDEND INCOME AMOUNTING TO RS. 1 91 995/-. IT IS THE ASSESSEE WHO IN THE PROCESS OF PREPARING THE REPLIES ON THE OTHER ISSUES CAME TO KNOW THAT THE TOTAL RECEIPTS ARE NOT DIVIDEND REC EIPT RATHER THEY INCLUDE SHORT TERM CAPITAL GAIN WHICH HAS TO BE OFFERED FOR T AX. IN SUCH SITUATION WE ARE OF THE OPINION THAT ASSESSEE DOES NOT DESERVE TO BE VISITED WITH PENALTY. WE ALLOW THE APPEAL OF ASSESSEE AND DELETE THE PENALTY . ORDER PRONOUNCED IN THE OPEN COURT ON 14.5.2010. [K.D. RANJAN] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER VEENA DATED: 14.5.2010 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT