JAIRAM VISHNU DHURI, PUNE v. ITO 26(1)(4), MUMBAI

ITA 2273/MUM/2010 | 2002-2003
Pronouncement Date: 31-01-2010 | Result: Allowed

Appeal Details

RSA Number 227319914 RSA 2010
Assessee PAN AAEPD2217M
Bench Mumbai
Appeal Number ITA 2273/MUM/2010
Appellant JAIRAM VISHNU DHURI, PUNE
Respondent ITO 26(1)(4), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted I
Tribunal Order Date 31-01-2011
Assessment Year 2002-2003
Appeal Filed On 22-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I BEFORE SHRI D.K. AGARWAL JUDICIAL MEMBER AND SHRI T.R. SOOD ACCOUNTANT MEMBER. ITA NOS.2273 2274 & 2275/MUM/10 (ASSESSMENT YEARS : 2002-03 TO 2004-05) SHRI JAIRAM VISHNU DHURI FLAT NO.204 SHREE SAMARTH CHSL PLOT NO.6 SECTOR 16 NEW PANVEL-410 206 PAN AAEPD 2217M VS. INCOME TAX OFFICER 26(1)(4) MUMBAI-400 002 APPELLANT. RESPONDENT. APPELLANT BY : SHRI PRAKASH PANDIT. RESPONDENT BY : SHRI PITAMBAR DAS. O R D E R PER BENCH : THESE THREE APPEALS PREFERRED BY THE ASSESSEE ARE DIRECTED AGAINST SEPARATE ORDERS DT.13.10.2009 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR THE ASST. YEARS 2002-03 2003-04 & 2004-05. SINCE FACTS ARE IDENTICAL AND ISSUE INVOLVED IS COMMON ALL THESE A PPEALS ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IT IS FOUND THAT THE APPEALS FILED BY THE ASSESS EE ARE BELATED BY 62 DAYS. 3. THE ASSESSEE VIDE HIS AFFIDAVIT DT.22.3.2010 INT ER ALIA STATED ON OATH AS UNDER : ITA NOS.2273 TO 2275/MUM//10 - 2 - RECENTLY DURING A MEETING WITH OUR UNION LEADERS ALL THE WORKERS INCLUDING ME WERE INFORMED BY TAX EXPERT/LA WYER THAT THE PENALTY LEVIED ARE NOT IN ACCORDANCE WITH LAW I N THE FACTS AND CIRCUMSTANCES OF THE CASE. TILL THIS MEETING WA S HELD I WAS NOT AWARE ABOUT FURTHER PROCEEDINGS OF FILING OF AP PEAL BEFORE THE ITAT. THE PRESENT APPEAL FILED BEFORE THE HON BLE BENCH OF ITAT IS BEYOND THE TIME PRESCRIBED OF FILING OF AP PEAL BY 63 DAYS FOR ALL THE THREE ASSESSMENT YEARS 2002-03 20 03-04 & 2004-05. I HEREBY REQUEST YOUR HONOUR DELAY IN FIL ING OF APPEALS MAY BE CONDONED OR PARDONED & JUSTICE MAY B E DONE IN MY CASE. 4. ON THE OTHER HAND THE LEARNED D.R. DID NOT SERI OUSLY OBJECT TO THE CONDONATION OF DELAY. 5. HAVING HEARD THE SUBMISSIONS OF THE RIVAL PARTIE S AND PERUSING THE MATERIAL AVAILABLE ON RECORD AND ALSO KEEPING IN VI EW THAT IT HAS BEEN CONSISTENTLY HELD BY THE HONBLE APEX COURT THAT IN THE MATTER OF CONDONATION OF DELAY A LIBERAL AND PRAGMATIC VIEW SHOULD BE TAK EN. THE REASON GIVEN BY THE APPELLANT FOR THE DELAY APPEARS TO BE SUFFICIENT CA USE AND ACCORDINGLY THE DELAY IS CONDONED FOR ALL THE THREE ASSESSMENT YEARS. 6. BRIEFLY STATED FACTS OF THE CASE EXTRACTED FROM ITA 2273/MUM/10 FOR A.Y. 2002-03 ARE THAT THE ASSESSEE IS AN EMPLOYEE O F BHARAT PETROLEUM CORPN. LTD. (BPCL) AND FILED ITS RETURN OF INCOME DECLARIN G TOTAL INCOME OF RS.7 83 333 AFTER CLAIMING LOSS OF RS.4 468 UNDER S ELF-OCCUPIED PROPERTY (SOP) UNDER THE HEAD INCOME FROM HOUSE PROPERTY WHICH I S ATTRIBUTABLE TO THE ITA NOS.2273 TO 2275/MUM//10 - 3 - INTEREST PAID ON LOAN FOR ACQUISITION OF PROPERTY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS OBSERVED BY THE A.O. THAT AFTER VERIFICATION OF INFORMATION RECEIVED FROM BPCL IN RESPECT OF THE AS SESSEE IT WAS FOUND THAT THE ASSESSEE HAS NOT SHOWN RECEIPT OF LEASE RENT AN D MAINTENANCE CHARGES. THEREFORE THE AO AFTER RECORDING REASONS IN WRITIN G ISSUED NOTICE U/S. 148 OF THE INCOME TAX ACT 1961 (THE ACT). IN RESPONSE TH E ASSESSEE FILED REVISED RETURN DECLARING TOTAL INCOME OF RS.7 64 110 WHEREI N HE HAS COMPUTED LOSS FROM HOUSE PROPERTY AT RS.36 000. THE AO AFTER CON SIDERING THE MATERIAL AVAILABLE ON RECORD COMPLETED THE ASSESSMENT AT THE SAME INCOME I.E. RS.7 64 110 WHEREIN HE HAS ACCEPTED THE LOSS UNDER THE HEAD INCOME FROM HOUSE PROPERTY AT RS.36 001 VIDE ORDER DT.22.11.20 07 PASSED U/S. 143(3) R.W.S. 147 OF THE ACT. WHILE MAKING THE ASSESSMENT THE A O ALSO INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT. ACCORDINGLY THE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY THE PENALTY SHOULD NOT BE IMPO SED U/S.271(1)(C). IN THE ABSENCE OF ANY RESPONSE THE A.O. IMPOSED PENALTY O F RS.9 439 ON THE CONCEALED INCOME OF RS. 31 464 (19 152+12 312) VID E ORDER DT.7.5.2008 PASSED U/S.271(1)(C) OF THE ACT. 7. ON APPEAL THE LEARNED CIT(A) FOLLOWING THE DECI SION OF UNION OF INDIA VS. DHARMENDRA TEXTILE PROCESSORS & ORS (2008) 306 ITR 277 (SC) HELD THAT ITA NOS.2273 TO 2275/MUM//10 - 4 - THE AO IS JUSTIFIED IN LEVYING PENALTY ON THE LEASE RENT AND MAINTENANCE CHARGES TREATED AS CONCEALED INCOME AND ACCORDINGLY CONFIRM ED THE PENALTY IMPOSED BY THE ASSESSING OFFICER. 8. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT( A) THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS FOR SUSTENANCE OF PENALTY IMPOSED BY THE ASSESSING OFFICER. 9. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE FOLLOWING DECISIONS OF THE TRIBUNAL : I) MRS. MANSHAL GAONKAR AND ORS VS. ITO IN ITA NO.5879 5674 5878 5880 5180 & 6056/MUM/2009 FOR A.Y. 2003-04 ORDER DT.27/8/2010. II) SRI RAVINDRA LAXMAN SATHE VS. ITO IN ITA NO.2828/MU M/08 FOR A.Y. 2001-02 DT.22.12.2009 AND III) SMT. VERONICA J. CORREIA VS. ITO IN ITA NOS. 5986 5987 & 5988/MUM/2009 FOR A.YS 2002-03 TO 2004-05 ORDER DT. 30.6.2010. HE ALSO PLACED ON RECORD THE COPY OF THE ABOVE MENT IONED ORDERS OF THE TRIBUNAL. HE THEREFORE SUBMITS THAT THE PENALTY I MPOSED BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) BE DELETED. ITA NOS.2273 TO 2275/MUM//10 - 5 - 10. ON THE OTHER HAND THE LEARNED D.R. SUPPORTS TH E ORDER OF THE ASSESSING OFFICER AND LD. CIT(A). 11. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND M ERIT IN THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ISSUE STANDS COVE RED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE CONSISTENT VIEW OF T HE CO-ORDINATE BENCH OF THE TRIBUNAL WHEREIN IT HAS BEEN HELD THAT THERE IS NO CONCEALMENT ON THE PART OF THE ASSESSEE. IN THE CASE OF SHRI SUNIL MADHUKAR JOSHI VS. ITO (ITA NO.2828/MUM/08 FOR THE A.Y. 2001-02 ORDER DT.1.2.2 010) IN WHICH ONE OF US (JM) WAS A PARTY WHEREIN IT HAS BEEN HELD VIDE PARA 6 OF THE ORDER AS UNDER : 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. WE FIND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE TRIBUNAL IN THE CASE OF SHRI RAVINDRA LAXMAN S ATHE (SUPRA) ON THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE HAS DELETED THE PENALTY VIDE FINDING RECORDED IN PARA 4.2 OF ITS OR DER DATED 22.12.2009 WHICH IS REPRODUCED AS UNDER : 4.2 ON CONSIDERATION OF ABOVE DISCUSSION AND RATI O LAID DOWN BY THE ITAT IN THE SAID CASE CITED SUPRA WE ARE OF THE CONSIDERED VIEW THAT IT IS NOT A FIT CASE FO R LEVY OF PENALTY U/S 271(1)(C). FROM THE ABOVE CIRCULAR IT IS CLEAR THAT IN THE CASE UNDER CONSIDERATION THE AO HAS DISCHARGED HIS DUTY OF ASSESSING CORRECT INCOME ON THE BASIS OF PARTICULARS AVAILABLE WITH THE DEPARTMENT WHICH MAY BE BY ISSUING NOTICE U/S 148 OF THE ACT. THE AS SESSEE CLAIMED THE INTEREST ON BORROWED CAPITAL AGAINST SO P INCOME AND OTHERS WHETHER THE SAME IS ALLOWABLE OR NOT OR WHAT SHOULD BE THE CORRECT INCOME IN ACCORDANCE WIT H THE ITA NOS.2273 TO 2275/MUM//10 - 6 - ACT IS A DIFFERENT THING BUT CERTAINLY RELEVANT SU FFICIENT PARTICULARS WERE ON RECORD EITHER IN THE FILE OF A SSESSEE FORM 16 OR IN THE FILE OF BPCL. THE AO MUST HAVE CONSIDERED THE RELEVANT SCHEME AND ALL MATERIAL IN ASSESSMENT OF BPCL. UNDER THE PECULIAR CIRCUMSTANCE S SUCH CONSIDERATION OF PARTICULARS IN THE CASE OF BP CL AMOUNTS PARTICULARS AVAILABLE ON RECORD IN CASES OF THE EMPLOYEES OF BPCL. THEREFORE SUCH CASES CANNOT BE SAID TO BE A CASE OF FURNISHING INACCURATE PARTICULARS O R INCOME OR CONCEALING OF ANY PARTICULARS OF INCOME PARTICUL ARLY WHEN ALL THE RELEVANT PARTICULARS/MATERIAL AVAILABL E WITH THE DEPARTMENT. FURTHER IT HAS BEEN NOTICED FROM P ENALTY ORDER THAT THE AO NOTED THAT EMPLOYEES IN A LARGE S CALE HAD FILED RETURNS OF INCOME AS PER TDS SALARY CERTI FICATE IN FORM NO. 16 AND HAD NOT DISCLOSED LEASE RENT & MAINTENANCE CHARGES RECEIVED INCLUDING ASSESSEE. WH EN A LARGE NUMBER OF PERSONS FILED THEIR RETURNS OF INCO ME BY SAME MISTAKE THAT MISTAKE CANNOT BE SAID TO BE A CA SE WHERE PENALTY PROVISIONS U/S 271(1)(C) IS APPLICABL E CONTRARY IT SUPPORTS TO ASSESSEES BONAFIDE. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGH T ON RECORD BY THE REVENUE WE RESPECTFULLY FOLLOWING THE ORDER O F THE TRIBUNAL (SUPRA) HOLD THAT UNDER THE PECULIAR FACTS AND CI RCUMSTANCES THERE IS NO CONCEALMENT ON PART OF THE ASSESSEE AND ACCOR DINGLY THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS DELETED. THE GROUNDS TAKEN BY THE ASSESSEE ARE THE REFORE ALLOWED. RESPECTFULLY FOLLOWING THE CONSISTENT VIEW OF THE T RIBUNAL (SUPRA) WE CANCEL THE PENALTY LEVIED BY THE ASSESSING OFFICER AND SUS TAINED BY THE LEARNED CIT(A). THE GROUNDS TAKEN BY THE ASSESSEE ARE THER EFORE ALLOWED. ITA NOS.2273 TO 2275/MUM//10 - 7 - ITA NO.2274 & 2275/MUM/10 12. AT THE TIME OF HEARING BOTH THE PARTIES HAVE AGREED THAT THE FACTS RELATING TO THE ABOVE ISSUE ARE IDENTICAL THEREFORE THE PLEA TAKEN BY THEM IN THE APPEAL FOR THE A.Y. 2002-03 MAY BE CONSIDERED WHILE DECIDI NG THE APPEALS FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05. 13. AFTER HEARING THE RIVAL PARTIES AND PERUSING TH E MATERIAL AVAILABLE ON RECORD AND KEEPING IN VIEW OF OUR FINDING RECORDED IN THE APPEAL FOR THE A.Y. 2002-03 IN PARA 11 OF THIS ORDER WE CANCEL THE PENA LTY IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT( A). THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE ALLOWED. IN THE RESULT THE ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JAN. 2011. SD/- SD/- (T.R. SOOD) (D.K. AGARWAL) ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI DT.31.01.2011. *GPR ITA NOS.2273 TO 2275/MUM//10 - 8 - TRUE COPY COPY TO : 1. THE ASSESSEE. 2. THE ASSESSING OFFICER. 3. CIT(APPEALS) 4. CIT 5. DEPARTMENTAL REPRESENTATIVE ITAT MUMBAI. BY ORDER DY./ASST.REGISTRAR ITAT MUMBAI ITA NOS.2273 TO 2275/MUM//10 - 9 - DATE INITIALS 1. DRAFT DICTATED ON 19.1.2011 2. DRAFT PLACED BEFORE AUTHOR 3. DRAFT PROPOSED & PLACED BEFORE SECOND MEMBER 4. DRAFT DISCUSSED & APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO A.R. 9. DATE OF DISPATCH OF ORDER.