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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI R.S. SYAL, VP & SHRI PARTHA SARATHI CHAUDHURY, JM
आदेश / ORDER
PER PARTHA SARATHI CHAUDHURY, JM :
This appeal preferred by the assessee emanates from the order of the Ld. CIT(Appeals)-2, Aurangabad dated 05.04.2016 for the assessment year 2010-11 as per following grounds of appeal on record:
“1. The Hon'ble CIT(A) has not looked into fact of the case that there was genuine mistake while submission of original return of income and revised return is submitted to correct the mistake happened due to oversight. There was no intention to conceal income in original return of income. 2. CIT(A) has erred with fact of case and therefore his order of agreeing with levy of penalty for concealment should be set aside. 3. I appeal that the penalty levied u/s.271(1)(c) of Rs.51,690/- is unjust and need to be dropped.
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The appellant craves leave to add, amend, alter, vary and /or withdraw any or all the above grounds of appeal.”
The solitary grievance of the assessee is the confirmation of penalty
levied u/s.271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as
‘the Act’) for Rs.51,690/- on account of concealment of income.
At the outset we notice that this appeal is time barred by 245 days. We
have perused the case record and find that for the interest of justice and
considering the Income tax laws as welfare legislation, we should condone the
delay and hear the appeal on merits. Accordingly, we do so.
At the time of hearing neither the assessee nor his Authorized
Representative was present. We have recorded the presence of the Ld. DR.
That on perusal of the penalty order passed u/s.271(1)(c) of the Act, the
brief facts emerging in this case are that the assessment was completed
u/s.143(3) of the Act on 08.03.2013 determining total income at
Rs.10,51,200/- as against return income of Rs.8,83,920/-. During the course
of assessment proceedings on verification of creditors, it was noticed by the
Assessing Officer that assessee has shown unsecured loan from Amit Jalan at
Rs.20,00,000/- was against the investment made in the Prayaja City, Pune.
The Ld. AR of the assessee has submitted that this property was proposed to
be purchased from Amit Jalan who has already booked this property with the
property dealer. Thereafter, the assessee has transferred the right to the third
party of which no documents are prepared. These transactions were made
only by giving part payment. From these transactions, he has received income
and credited to the P & L Account. However, the same has not been taken in
the original computation of income.
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That from perusal of the penalty order of Assessing Officer as well as
the order of Ld. CIT(Appeals), the main contention of the Revenue is that it is
because of the questionnaire issued by the Assessing Officer asking the
assessee to file revised return that all the details of the transactions was
incorporated therein which was not there in the original return of income by
the assessee. If the questionnaire was not issued by the Assessing Officer and
revised return was not asked to be filed then the assessee would have
concealed this income from return. The action of the assessee therefore in
filing revised return is not suo-moto, hence, once the transactions were not
there in the original return there is concealment of income.
We have perused the case record, examined the documents available on
records and analyzed the facts and circumstances in this case. The
contention of the Revenue is that in the revised return details of transactions
which are mentioned in the penalty order was not shown suo-moto but
because of the fact that Assessing Officer had asked the assessee through
questionnaire to file details in the revised return that resulted in providing
details of transactions in such return. In absence of this exercise by the
Assessing Officer, the assessee would have concealed the income. However, in
the penalty order, we find that it is admitted by the Assessing Officer himself
that from transactions the income received has been credited to the P & L
Account of the assessee.
This facts signifies that the intention of the assessee was never to
defraud the Revenue. The details of the transactions through which the
income has been received, was there in the P & L Account of the assessee,
which inadvertently not there in the original return of income, however, those
were again filed in the revised return of the assessee. There was no deliberate
intention from the facts on record which can even hint that the assessee was
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trying to conceal his income. The books of account especially P & L Account were already filed with the Department. All the transactions from which income earned was mentioned therein.
In view of the matter, we are of the opinion that the penalty order is liable to be quashed. Thus, the order of CIT(A) is set-aside and direct the Assessing Officer to delete the penalty. Accordingly, the grounds of appeal raised by the assessee are allowed.
In the result, appeal of the assessee is allowed.
Order pronounced on 22nd day of January, 2019.
Sd/- Sd/- R.S. SYAL PARTHA SARATHI CHAUDHURY VICE-PRESIDENT JUDICIAL MEMBER
पुणे / Pune; �दनांक / Dated : 22nd January, 2019. SB आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to :
अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT (Appeals)-2, Aurangabad. 4. The Pr. CIT-2, Aurangabad. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “बी” ब�च, 5. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 6.
// True Copy // आदेशानुसार / BY ORDER,
�नजी स�चव / Private Secretary आयकर अपील�य अ�धकरण, पुणे / ITAT, Pune.
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Date 1 Draft dictated on 21.01.2019 Sr.PS/PS 2 Draft placed before author 22.01.2019 Sr.PS/PS 3 Draft proposed and placed JM/AM before the second Member 4 Draft discussed/approved by AM/JM second Member 5 Approved draft comes to the Sr.PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order