MS. BELA NIPUN MEHTA,MUMBAI vs. COMMISSIONER OF INCOME TAX (APPEALS)- 18, MUMBAI, MUMBAI

This appeal is filed by Ms Bela Nipun Mehta against appellate order passed by the Commissioner of income tax (appeals) – 18, Mumbai (the learned CIT – A) on 28/11/2019 for assessment year 2012 – 13 wherein the penalty levied by the learned assessing officer under section 271 (1) (C) of the income tax act, 1961 (the act) levied by the deputy Commissioner of income tax, Circle 19 (1), Mumbai (the learned assessing officer was confirmed.

Fact shows that assessee is an individual deriving income from salary, income from house property, capital gain and income from other sources and share of profit from partnership firms. She filed return of income on 24/7/2012 declaring total income of ₹ 5,067,969/–. The return was revised on 31/8/2012 on the same income.

It was found that assessee is appearing as a bogus donor in the case of School Of Human Genetics And Population Health Calcutta wherein she has given the donation of ₹ 5 lakhs and claimed enhanced the deduction under section 35 (1) (ii) of the act of ₹ 875,000/–. The case of the assessee was reopened under section 147 of the act and the addition was made. The learned assessing officer initiated the penalty proceedings under section 271 (1) (C) of the act. The satisfaction recorded by the learned assessing officer was on furnishing of inaccurate particulars of the income in terms of explanation 1 of section 271 (1) (c ) of the act.

The learned assessing officer after considering the explanation of the assessee passed penalty order under section 271 (1) ( C ) of the act levying penalty of rupees 2,70,375/–.

The claim of the assessee is that identical issue arose in case of ITA number 2604/M/2019 for assessment year 2012 – 13 wherein the coordinate bench by order dated 26/11/2021 where donation to the same institute was given by that assessee and penalty was levied, it was deleted by the coordinate bench and therefore the issue is squarely covered in favour of the assessee by the decision of the coordinate bench. On the merits of the case, the assessee submitted a six-page paper book submitting that there is neither a furnishing of inaccurate particulars of income nor concealment of income. Therefore, the penalty should not have been levied.

The learned departmental representative vehemently stated that when the donor itself has indulged in giving a bogus donation to a trust, which is found to be bogus, the name of the assessee is mentioned in a bogus donor’s list, how one can say that assessee has not concealed the income or furnished inaccurate particulars of income. It was further stated that revenue does not agree with the order of the ITAT in 2604/M/2019 and it has also not been challenged only for the reason of the tax effect and therefore that judgment cannot be taken as a binding precedent.

However, agreeing with the learned departmental representative we are of the opinion that when the revenue has not challenged and order due to the tax effect, it cannot be considered as a binding precedent in case of other assessee, but it requires to be decided on its own merits. Even otherwise in that decision also we find that coordinate benches relied on the decision of ITA number 1620/M/2018 dated 31/10/2019 which was with respect to the bogus purchases. Therefore, also in view of the different facts, the above decision does not apply.

However, we find that in the assessment order the learned assessing officer has initiated the penalty proceedings stating that assessee has concealed the income by way of furnishing inaccurate particulars of income. This is the satisfaction recorded in the assessment order. In the penalty, order also the learned AO has held that assessee has concealed is income and has mentioned that assessee has furnished inaccurate particulars of income. Therefore, it is apparent that the learned assessing officer has raised

Appeal filed by the assessee is allowed.