PRABHAKAR SHANKAR THAKARE,NASHIK vs. NATIONAL FACELESS ASSESSMENT CENTRE, DELHI

On the facts and in law the CIT(A) has erred in confirming the penalty of 1. On the facts and in law the CIT(A) has erred in confirming the penalty of 1. On the facts and in law the CIT(A) has erred in confirming the penalty of 1. On the facts and in law the CIT(A) has erred in confirming the penalty of Rs.1,35,878/ Rs.1,35,878/- u/s 270A as the notice issued u/s 148 dated 03/03/2020 u/s 270A as the notice issued u/s 148 dated 03/03/2020 u/s 270A as the notice issued u/s 148 dated 03/03/2020 is bad in law as the tax on the alleged income escap is bad in law as the tax on the alleged income escap is bad in law as the tax on the alleged income escaped assessment was ed assessment was paid by the assessee voluntarily on 23/05/2019 i.e. much prior to the paid by the assessee voluntarily on 23/05/2019 i.e. much prior to the paid by the assessee voluntarily on 23/05/2019 i.e. much prior to the paid by the assessee voluntarily on 23/05/2019 i.e. much prior to the issue of notice u/s 148 when the assessee came to know about the issue of notice u/s 148 when the assessee came to know about the issue of notice u/s 148 when the assessee came to know about the issue of notice u/s 148 when the assessee came to know about the fraudulent activity of ITP Kishor Patil. fraudulent activity of ITP Kishor Patil.

On the facts and in law the CIT( 2. On the facts and in law the CIT(A) has erred in confirming the penalty of A) has erred in confirming the penalty of A) has erred in confirming the penalty of Rs.1,35,878/ Rs.1,35,878/- u/s 270A as the same is levied without mentioning limb i.e u/s 270A as the same is levied without mentioning limb i.e u/s 270A as the same is levied without mentioning limb i.e sub clause of section 270A of the Act and also as the AO had accepted sub clause of section 270A of the Act and also as the AO had accepted sub clause of section 270A of the Act and also as the AO had accepted sub clause of section 270A of the Act and also as the AO had accepted income returned in response to notice u/s 148 of the Act. income returned in response to notice u/s 148 of the Act. income returned in response to notice u/s 148 of the Act. The appellan The appellant craves leave to add alter delete above OR any other t craves leave to add alter delete above OR any other t craves leave to add alter delete above OR any other ground/s of appeal. ground/s of appeal.

We have heard Ld. DR & perused the material available on record. From 7. We have heard Ld. DR & perused the material available on record. From 7. We have heard Ld. DR & perused the material available on record. From 7. We have heard Ld. DR & perused the material available on record. From the statement of facts, we find that the assessee is a salaried employee of the statement of facts, we find that the assessee is a salaried employee of the statement of facts, we find that the assessee is a salaried employee of the statement of facts, we find that the assessee is a salaried employee of BOSCH Limited & BOSCH Limited & belongs to technical background. The return of most of belongs to technical background. The return of most of belongs to technical background. The return of most of the employees of Bosch Company, including that of the assessee was filed the employees of Bosch Company, including that of the assessee was filed the employees of Bosch Company, including that of the assessee was filed the employees of Bosch Company, including that of the assessee was filed by a tax consultant namely Kishor Patil. We further find that the assessee by a tax consultant namely Kishor Patil. We further find that the assessee by a tax consultant namely Kishor Patil. We further find that the assessee by a tax consultant namely Kishor Patil. We further find that the assessee came to know from other employees in company that Mr came to know from other employees in company that Mr came to know from other employees in company that Mr. Kishor Patil with . Kishor Patil with his expertise is able to legally calculate lower tax, resulting in refund of his expertise is able to legally calculate lower tax, resulting in refund of his expertise is able to legally calculate lower tax, resulting in refund of his expertise is able to legally calculate lower tax, resulting in refund of TDS deducted by employer. The assessee was unaware about the contents TDS deducted by employer. The assessee was unaware about the contents TDS deducted by employer. The assessee was unaware about the contents TDS deducted by employer. The assessee was unaware about the contents of the Income Tax Return filed by Kishor Patil & truly believed that the of the Income Tax Return filed by Kishor Patil & truly believed that the of the Income Tax Return filed by Kishor Patil & truly believed that the of the Income Tax Return filed by Kishor Patil & truly believed that the returns are file returns are filed legally as per the provisions of the d legally as per the provisions of the Income Tax Act. The . The assessee being from technical background does not understand ABCD of assessee being from technical background does not understand ABCD of assessee being from technical background does not understand ABCD of assessee being from technical background does not understand ABCD of Income Tax & therefore completely relied on the above named tax Income Tax & therefore completely relied on the above named tax Income Tax & therefore completely relied on the above named tax Income Tax & therefore completely relied on the above named tax consultant, w consultant, who without informing him & others, claimed excess deduction ho without informing him & others, claimed excess deduction ho without informing him & others, claimed excess deduction under chapter VI under chapter VI-A of the IT Act & claimed refund. It was Kishor Patil who A of the IT Act & claimed refund. It was Kishor Patil who A of the IT Act & claimed refund. It was Kishor Patil who cheated all the employees & claimed excess deduction in their returns cheated all the employees & claimed excess deduction in their returns cheated all the employees & claimed excess deduction in their returns cheated all the employees & claimed excess deduction in their returns without informing them for his own benefit. The fac without informing them for his own benefit. The fac without informing them for his own benefit. The fact of the cheating came in t of the cheating came in light when a survey light when a survey u/s 133A was conducted at the premises of Mr Kishor was conducted at the premises of Mr Kishor was conducted at the premises of Mr Kishor Patil. When the fact that this kind of fraud was made in the name of Patil. When the fact that this kind of fraud was made in the name of Patil. When the fact that this kind of fraud was made in the name of Patil. When the fact that this kind of fraud was made in the name of number of persons all of them complain number of persons all of them complaint to the Economic Offence Wing of t to the Economic Offence Wing of t to the Economic Offence Wing of Police Nashik, against the tax consultant Kishore Patil. The news regarding Police Nashik, against the tax consultant Kishore Patil. The news regarding Police Nashik, against the tax consultant Kishore Patil. The news regarding Police Nashik, against the tax consultant Kishore Patil. The news regarding fraud committed by Kishore Patil also flashed in the daily news paper of fraud committed by Kishore Patil also flashed in the daily news paper of fraud committed by Kishore Patil also flashed in the daily news paper of fraud committed by Kishore Patil also flashed in the daily news paper of Nashik. It is also apparent that there is no mistake of the assessee but Nashik. It is also apparent that there is no mistake of the assessee but Nashik. It is also apparent that there is no mistake of the assessee but it Nashik. It is also apparent that there is no mistake of the assessee but was the hidden interest of the tax consultant who triggered the gun by was the hidden interest of the tax consultant who triggered the gun by was the hidden interest of the tax consultant who triggered the gun by was the hidden interest of the tax consultant who triggered the gun by using shoulders of the assessee & many more for his own benefit. It is also using shoulders of the assessee & many more for his own benefit. It is also using shoulders of the assessee & many more for his own benefit. It is also using shoulders of the assessee & many more for his own benefit. It is also found that as soon as the fact of excess deduction claimed, came to the found that as soon as the fact of excess deduction claimed, came to the found that as soon as the fact of excess deduction claimed, came to the found that as soon as the fact of excess deduction claimed, came to the knowledge of the assessee he immed knowledge of the assessee he immediately contacted another genuine tax iately contacted another genuine tax iately contacted another genuine tax consultant who prepared and furnished correct return in response to the consultant who prepared and furnished correct return in response to the consultant who prepared and furnished correct return in response to the consultant who prepared and furnished correct return in response to the notice u/s 148 u/s 148 of the IT Act & paid the due tax with interest, even before of the IT Act & paid the due tax with interest, even before of the IT Act & paid the due tax with interest, even before the issue of notice the issue of notice u/s 148 of the IT Act. We find that the Assessing Officer of the IT Act. We find that the Assessing Officer of the IT Act. We find that the Assessing Officer has levied penalty u/s 270A of the IT Act of Rs.1,15,938/ has levied penalty of the IT Act of Rs.1,15,938/- on the basis of on the basis of the fact that the the fact that the correct income was not returned voluntarily but only after correct income was not returned voluntarily but only after correct income was not returned voluntarily but only after issue of notice issue of notice u/s 148 of the IT Act. It is also found that when the notice of the IT Act. It is also found that when the notice of the IT Act. It is also found that when the notice u/s 148 was issued the appellant has disclosed his correct income & u/s 148 was issued the appellant has disclosed his correct income & u/s 148 was issued the appellant has disclosed his correct income & paid paid the due tax before issue of notice. We also find that the Assessing Officer the due tax before issue of notice. We also find that the Assessing Officer the due tax before issue of notice. We also find that the Assessing Officer the due tax before issue of notice. We also find that the Assessing Officer has accepted the return as it is which was furnished by the appellant in has accepted the return as it is which was furnished by the appellant in has accepted the return as it is which was furnished by the appellant in has accepted the return as it is which was furnished by the appellant in response to the notice response to the notice u/s 148 of the IT Act. We c of the IT Act. We cannot accept the annot accept the contention of Ld. DR that the revised return was not voluntary therefore the contention of Ld. DR that the revised return was not voluntary therefore the contention of Ld. DR that the revised return was not voluntary therefore the contention of Ld. DR that the revised return was not voluntary therefore the penalty u/s u/s 270A of the Act is inevitable. From the perusal of penalty of the Act is inevitable. From the perusal of penalty of the Act is inevitable. From the perusal of penalty u/s 270A was initiated for the order, it appears that the penalty order, it appears that the penalty u/s was initiated for the assessment year under consideration and subsequently penalty of assessment year under consideration and subsequently penalty of assessment year under consideration and subsequently penalty of assessment year under consideration and subsequently penalty of Rs.1,15,938/- u/s 270A(9) was imposed for underreporting of income as a Rs.1,15,938/ (9) was imposed for underreporting of income as a (9) was imposed for underreporting of income as a consequence of misreporting. In this consequence of misreporting. In this regard, we find that prior to imposition regard, we find that prior to imposition regard, we find that prior to imposition of of penalty penalty a a notice notice to to show show-cause cause - why why an an order order imposing imposing u/s 270A should not be passed, was issued to the assessee but penalty u/s should not be passed, was issued to the assessee but should not be passed, was issued to the assessee but section (9) of section 270A of the IT the particular clause ('a' to 'f') the particular clause ('a' to 'f') of sub-section (9) of of the IT Act was not mentioned. In such kind of situation, we find support from the Act was not mentioned. In such kind of situation, we find support from the Act was not mentioned. In such kind of situation, we find support from the Act was not mentioned. In such kind of situation, we find support from the decision of Co decision of Co-ordinate Bench of this Tribunal in the case of Shashikant ordinate Bench of this Tribunal in the case of Shashikant ordinate Bench of this Tribunal in the case of Shashikant Sukdeo Am Sukdeo Ambekar in ITA No.365 & 366/PUN/2023 dated 20 bekar in ITA No.365 & 366/PUN/2023 dated 20-07-2023 2023 wherein under identical facts and similar circumstances the Tribunal has wherein under identical facts and similar circumstances the Tribunal has wherein under identical facts and similar circumstances the Tribunal has wherein under identical facts and similar circumstances the Tribunal has deleted the penalty u/s 270A by observing as under : deleted the penalty u/s by observing as under : - "8. In the case under consideration, the AO has failed to identify the "8. In the case under consideration, the AO has failed to identify the "8. In the case under consideration, the AO has failed to identify the "8. In the case under consideration, the AO has failed to identify the section 270A(9) of the Act. Therefore, specific Clauses from Clause (a fic Clauses from Clause (a-f) of section of the Act. Therefore, respectfully following ITAT Pune and ITAT Mumbai decisions the AO is respectfully following ITAT Pune and ITAT Mumbai decisions the AO is respectfully following ITAT Pune and ITAT Mumbai decisions the AO is respectfully following ITAT Pune and ITAT Mumbai decisions the AO is section 270A of the Act. Accordingly, directed to delete the penalty under directed to delete the penalty under section of the Act. Accordingly, grounds of appeal raised by the assessee are allowed." grounds of appeal raised by the assessee are allowed." grounds of appeal raised by the assessee are allowed." 8. Respectfully following the above decision passed by the Coordinate 8. Respectfully following the above decision passed by the Coordinate 8. Respectfully following the above decision passed by the Coordinate 8. Respectfully following the above decision passed by the Coordinate Bench of this Tribunal (supra) & also in the light of other deci Bench of this Tribunal (supra) & also in the light of other deci Bench of this Tribunal (supra) & also in the light of other decisions passed sions passed by coordinate Pune Benches Pune in the case of Annasaheb Namdeo by coordinate Pune Benches Pune in the case of Annasaheb Namdeo by coordinate Pune Benches Pune in the case of Annasaheb Namdeo by coordinate Pune Benches Pune in the case of Annasaheb Namdeo Gunjal vs ITO Nashik in ITA No.182/P/2024 order dated 21 Gunjal vs ITO Nashik in ITA No.182/P/2024 order dated 21 Gunjal vs ITO Nashik in ITA No.182/P/2024 order dated 21-10-2024 & in 2024 & in the case of Deepak Bhikha vs ITO Nashik in ITA No.685/PUN/2024 order the case of Deepak Bhikha vs ITO Nashik in ITA No.685/PUN/2024 order the case of Deepak Bhikha vs ITO Nashik in ITA No.685/PUN/2024 order the case of Deepak Bhikha vs ITO Nashik in ITA No.685/PUN/2024 order dated 21-10 10-2024 wherein similar penalty 2024 wherein similar penalty was directed to be deleted, we was directed to be deleted, we direct direct direct direct the the the the AO AO AO AO to to to to delete delete delete delete the the the the penalty penalty penalty penalty of of of of Rs.1,15,938/ Rs.1,15,938/ Rs.1,15,938/- Rs.1,15,938/ u/s 270A(9) of the IT Act. Thus, the grounds of appeal raised by imposed u/s of the IT Act. Thus, the grounds of appeal raised by of the IT Act. Thus, the grounds of appeal raised by the assessee in the present appeal are allow the assessee in the present appeal are allow the assessee in the present appeal are allowed. 8 We find that the We find that the above decision is squarely above decision is squarely applicable on the applicable on the facts of the instant case and there being no binding precedents instant case and there being no binding precedents instant case and there being no binding precedents instant case and there being no binding precedents referred and relied by the ld. DR we apply the ratio laid down referred and relied by the ld. DR we apply the ratio laid down referred and relied by the ld. DR we apply the ratio laid down by the by the Tribunal in the case of in the case of Santosh Ashokrao Santosh Ashokrao Bharhanpurkar Vs. ITO Bharhanpurkar Vs. ITO (supra) and delete the impugned penalty levied u/s 270A of the Act and delete the impugned penalty levied u/s 270A of the Act and delete the impugned penalty levied u/s 270A of the Act and delete the impugned penalty levied u/s 270A of the Act for the A.Y 2017 for the A.Y 2017-18 and 2018-19. Finding 19. Finding of Ld. CIT(A) set aside of Ld. CIT(A) set aside and effective grounds of the assessee are allowed. and effective grounds of the assessee are allowed. and effective grounds of the assessee are allowed.