SANJAY K. SHAH,MUMBAI vs. JOINT COMMISSIONER OF INCOME TAX RANGE-19(2), MUMBAI

P a g e | 1 ITA No.4666/Mum/2018 A.Y. 2014-15 Sanjay K. Shah Vs. Jt. Commissioner of Income Tax, Range-19(2) IN THE INCOME TAX APPELLATE TRIBUNAL “G” Bench, Mumbai Before Shri S.Rifaur Rehman, Accountant Member and Shri Ravish Sood, Judicial Member ITA No.4666/Mum/2018 (Assessment Year: 2014-15) Sanjay K. Shah, Joint Commissioner of Income Tax, 31, Jay Bhavani Society, Range 19(2), 3 Ridge Road, Vs. Mumbai Mumbai – 400 006

PAN – AAEPS3903N (Appellant) (Respondent)

Appellant by: Ms. Aarti Vissanji, A.R Respondent by: Shri V. Vinod Kumar, D.R Date of Hearing: 21.11.2019 Date of Pronouncement: 27.11.2019

O R D E R PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the CIT(A)-6, Mumbai, dated 05.03.2018, which in turn arises from the order passed by the Joint Commissioner of Income Tax, Range-19(2), Mumbai under Sec.272A(2)(c) of the Income Tax Act, 1961 (for short „Act‟). The assessee has assailed the impugned order on the following grounds of appeal before us: “Based on the facts and circumstances of the case, Mr. Sanjay K. Shah ("the Appellant") respectfully craves leave to prefer an appeal against the order passed by the Commissioner of Income Tax (Appeals) - 6, Mumbai ("CIT(A)") dated 5 March 2018 (received on 17.04.2018) under section 250 of the Income-tax Act, 1961 (the "Act") ("the Order"), on the following grounds: 1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in confirming penalty under section 272A(2)(c) of the Act of Rs. 36,400 levied by the JCIT ('AO') for non-compliance of notice under section 133(6) of the Act. The appellant prays that the penalty levied at Rs.36,400 may please be deleted.

P a g e | 2 ITA No.4666/Mum/2018 A.Y. 2014-15 Sanjay K. Shah Vs. Jt. Commissioner of Income Tax, Range-19(2) 2. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in placing reliance on the document (referred to as the Base Note) which is not authenticated or certified by any credible statutory authority or the bank in question. 3. The learned CIT(A) has erred in seeking to establish the genuineness and correctness of the information on the basis that the personal details of the Appellant matches with the details as mentioned in the Base Note. 4. The learned CIT(A) has erred in not considering the submissions, statements and affidavits given by the Appellant which substantiates the fact that the Appellant does not own the bank account in HSBC Bank, Geneva. 5. The CIT(A) has erred in not appreciating the fact that the Appellant has not submitted the 'Consent Waiver Form' as it would tantamount to Appellant making a false statement/declaration about a bank account in HSBC Bank, Geneva of which he is not the owner. 6. The learned CIT(A) erred in concluding that no case for a reasonable cause has been made out by the Appellant under Section 273B of the Act, without appreciating the fact that the Appellant is not the owner of the bank account in HSBC Bank, Geneva. 7. The learned CIT(A) failed to appreciate that the reassessment proceedings under Section 147 initiated on the basis the alleged bank account of HSBC Bank, Geneva were dropped in the case of Appellant by the AO. 8. In the premise of the aforesaid, the impugned order has been passed without due application of mind, without considering the evidence on record, by purporting to rely on evidence which is clearly inadmissible and contrary to law and therefore the said Order is unsustainable and liable to be quashed. The appellant submits that each of the above grounds is independent and without prejudice to one another. The Appellant craves leave to add, alter, amend, vary, omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of the appeal, so as to enable the Hon'ble Tribunal to decide on the appeal in accordance with the law.”

P a g e | 3 ITA No.4666/Mum/2018 A.Y. 2014-15 Sanjay K. Shah Vs. Jt. Commissioner of Income Tax, Range-19(2) the assessee had objected to the filling of the consent waiver form. In order to obtain the consent waiver form, the A.O had also issued notice under Sec. 133(6), dated 19.12.2013 to the assessee. However, the assessee denied ownership of any bank account with HSBC bank Geneva, and also refused to sign the consent waiver form. Finally, the A.O issued a notice under Sec. 272A(2)(c), wherein the assessee was once again specifically requested to furnish his consent waiver form, as the same was indispensably required for obtaining the complete bank statement from the aforesaid bank. In reply, the assessee denied ownership of any such bank account and also is stated to have not furnished any details as were called for by the A.O. In the backdrop of the aforesaid facts, the A.O finding the assesses reply to be unsatisfactory, therefore, held a conviction that the assessee had wilfully failed to produce the required documents as were specified in the notice under Sec.133(6), dated 19.12.2013. On the basis of the aforesaid facts, the A.O observing that the assessee had wilfully not complied with the notice issued to him under Sec.133(6), therefore, levied penalty of Rs.36,400/- under Sec.272A(2)(c) of the Act. 3. Aggrieved, the assessee assailed the penalty imposed by the A.O under Sec. 272A(2)(c) in appeal before the CIT(A). Observing, that the assessee who had remained under an obligation to submit the information/documents as was called for by the A.O under Sec. 133(6) of the Act, had however, deliberately not submitted the same, the CIT(A) upheld the penalty imposed by the A.O under Sec.272A(2)(c) of the Act. Also, the alternative claim of the assessee that no such penalty was liable to be imposed as per the provisions of Sec.273B of the Act, did not find favour with the first appellate authority. 4. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee at the very outset of the hearing of the appeal submitted, that the appeal filed by the assessee involved a delay of 46 days. It was submitted by the ld. A.R, that the delay in filing of the present appeal had occasioned on account of unavoidable circumstances on the part of the assessee. It was averred by the ld. A.R, that as the assessee during the relevant point of time i.e 15.04.2018 till 27.06.2018 was travelling within and outside India for his business purpose, therefore, inadvertently the appeal which was to be filed latest by 17.06.2018 could not be filed within the stipulated period. It was submitted by the ld. A.R, that as the aforesaid delay was for

P a g e | 4 ITA No.4666/Mum/2018 A.Y. 2014-15 Sanjay K. Shah Vs. Jt. Commissioner of Income Tax, Range-19(2) bonafide reasons, therefore, in all fairness the same may be condoned. In support of her aforesaid claim for condonation of delay, the ld. A.R had relied on the judgment of the Hon’ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthi (1998) 7 Supreme Court Cases 123 (SC). 5. Per contra, the ld. Departmental Representative (for short „D.R‟) did not object to the seeking of condonation of delay in filing of the appeal by the assessee. 6. We have given a thoughtful consideration and after perusing the application filed by the assessee seeking condonation of delay of 46 days, which is further supported by his „affidavit‟, we find substantial force in the claim of the ld. A.R that the delay of 46 days in filing of the present appeal had occasioned on account of unavoidable reasons, and not for any lapses or laches on the part of the assessee. Accordingly, we are of the considered view that in all fairness the aforesaid delay of 46 days involved in filing of the present appeal by the assessee merits to be condoned. 7. We shall now advert to the merits of the case. It was submitted by the ld. A.R, that involving exactly identical facts and circumstances penalty under Sec. 272A(2)(c) was imposed in the case of the father of the assessee. It was averred by the ld. A.R, that on appeal the aforesaid penalty imposed by the A.O under Sec.272A(2)(c) was vacated by the Tribunal, vide its order passed in Kanaiyalal B. Shah Vs. JCIT, Range 19(2), Mumbai (ITA No. 4667/Mum/2018, dated 30.08.2019) (copy placed on record). It was further submitted by the ld. A.R, that the reassessment proceedings which were initiated in the case of the assessee under Sec. 147 of the Act, had thereafter been dropped by the A.O. In sum and substance, it was the claim of the ld. A.R, that now when the very genesis of the controversy had been put to rest by the department and the assessment proceedings initiated against the assessee had in itself been vacated, therefore, on the said count also no penalty under Sec. 272A(2)(c) imposed by the A.O could thereafter be sustained. 8. Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities. It was submitted by the ld. D.R, that as the assessee had failed to furnish the requisite information as was called for by the A.O under Sec.133(6) of the Act, therefore,

P a g e | 5 ITA No.4666/Mum/2018 A.Y. 2014-15 Sanjay K. Shah Vs. Jt. Commissioner of Income Tax, Range-19(2) the assessee had rightly been subjected to penalty under Sec.272A(2)(c) for non-compliance of a statutory obligation. 9. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. As observed by us hereinabove, the penalty under Sec.272(A)(c) was imposed on the assessee for the failure on his part to furnish certain details as were sought by the A.O vide his notice issued under Sec.133(6), dated 19.12.2013. As is discernible from the order passed by the Jt. CIT, Mumbai, under Sec. 272A(2)(c), dated 30.12.2014, we find that the assessee in reply to the notice u/s 133(6), dated 19.12.2013, had declined the ownership of any bank account with HSBC, Geneva, and thus for the said specific reason had refused to sign the consent waiver form. Accordingly, the non- signing of the consent waiver form by the assessee was specifically backed by a reason given by the assessee, which in our considered view cannot be construed as a non-compliance of the notice issued under Sec.133(6) of the Act. In fact, there is nothing discernible from the records which could persuade us to conclude that any specific information/details as were called for by the A.O by his notice issued under Sec. 133(6), had not been furnished by the assessee. Be that as it may, we find that involving identical facts penalty under Sec.272A(2)(c) was also imposed in the case of the father of the assessee viz. Shri Kanaiyalal B. Shah, which however was thereafter vacated by a coordinate bench of the Tribunal i.e ITAT “H” Bench, Mumbai, vide its order passed in ITA No. 4667/Mum/2018, dated 30.08.2019 (copy placed on record). In fact, the Tribunal while quashing the penalty imposed by the Jt. CIT under Sec. 272A(2)(c) in the said case, had observed as under : “9. We have noted that the assessee in his reply categorically stated neither he owned bank account nor he has owned any relationship with the alleged bank account in HSBC Bank, Geneva. The Assessing Officer without rebutting his reply that there was any material before him to prove the contrary, has held that assessee has not complied with notice under section 133(6) by not signing the consent waiver form. Once assessee has duly complied with all the notices sent by the Assessing Officer, he cannot take the view that assessee failed to produce the required document. We have also noted that on the basis of same information the case of assessee was reopened under section 147 by issuing notice under section 148 dated 12.03.2014. The assessee before ITA No. 4667 Mum 2018- Kanaiyalal B. Shah 10 the ld. CIT(A) specifically contended that the re-opening proceeding was dropped by the Assessing Officer. In our view once the assessee denied the ownership of the bank account in response to the notice under section 133(6), the Assessing Officer cannot take the plea that assessee failed to comply with the condition of aforesaid notice. Hence, we are of the view that levy of penalty by Assessing Officer under section 272A(2)(c) was not justified. Therefore, we direct the Assessing Officer to delete the entire penalty. No contrary fact or material is placed before us. No contrary law is cited by revenue to take the other view. Hence, the grounds of appeal raised by assessee are allowed.”

P a g e | 6 ITA No.4666/Mum/2018 A.Y. 2014-15 Sanjay K. Shah Vs. Jt. Commissioner of Income Tax, Range-19(2)

On the basis of our aforesaid observations, we are unable to persuade ourselves to subscribe to the imposition/sustaining of the penalty under Sec. 272A(2)(c) by the lower authorities. In the backdrop of our aforesaid observations, we are of the considered view that the penalty imposed by the Jt. CIT under Sec. 272A(2)(c) is not justified. Accordingly, not finding favour with the view taken by the lower authorities, we quash the penalty of Rs. 36,400/- imposed by the Jt. CIT under Sec. 272A(2)(c) of the Act.. 10. The appeal filed by the assessee is allowed. Order pronounced in the open court on 27.11.2019 Sd/- Sd/- (S. Rifaur Rehman) (Ravish Sood) ACCOUNTANT MEMBER JUDICIAL MEMBER भ ुंफई Mumbai; ददन ुंक 27.11.2019 PS. Rohit आदेश की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to : 1. अऩीर थी / The Appellant 2. प्रत्मथी / The Respondent. 3. आमकय आम क्त(अऩीर) / The CIT(A)- आमकय आम क्त / CIT 4. विब गीम प्रतततनधध, आमकय अऩीरीम अधधकयण, भ ुंफई / 5. DR, ITAT, Mumbai 6. ग र्ड प ईर / Guard file. सत्म वऩत प्रतत //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीऱीय अधिकरण, भ ुंफई / ITAT, Mumbai

P a g e | 7 ITA No.4666/Mum/2018 A.Y. 2014-15 Sanjay K. Shah Vs. Jt. Commissioner of Income Tax, Range-19(2)