TOTAL TRANSPORT SYSTEMS LIMITED,MUMBAI vs. ACIT 11(3)(1), MUMBAI

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ITA 3828/MUM/2018Status: DisposedITAT Mumbai04 September 2019AY 2010-113 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that penalty proceedings are separate from quantum proceedings. The assessee's conduct was not found to be contumacious, and the submitted reconciliations, though at a later stage, showed an honest attempt to explain the differences.

What were the facts?

The Assessing Officer made disallowances on contract receipts due to unreconciled differences with the 26AS statement. The assessee submitted additional evidence at the appellate stage, which was rejected in one year and not fully accepted in another.

What were the issues?

Whether penalty under Section 271(1)(c) is leviable when the assessee provides reconciliation at the appellate stage and the differences are not due to concealment or furnishing of inaccurate particulars.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, “E” Bench, Mumbai

Before: Shri Shamim Yahya (AM) & Shri Ravish Sood (JM)

For Appellant: Shri C.S. Ananthan &, Shri Nitin A. Joshi
For Respondent: Shri Rajeev Gubgotra
Hearing: 19.8.2019Pronounced: 04.9.2019

Heard together (2 matters)

I.T.A. No. 3828/Mum/2018
I.T.A. No. 3829/Mum/2018

Read from the judgment's own cause title. This page is filed under one of them.

Per Shamim Yahya (AM) :- These are appeal by the assessee directed against the orders of learned CIT(A) and pertain to A.Ys. 2010-11 & 2011-12. The grounds of appeal related to the levy of penalty under section 271(1)(c) of the I.T. Act as under :-

A.Y. 2010-11 Rs. 3,25,000/- A.Y. 2011-12 Rs. 1,65,000/-

2.

Brief facts of the case leading to the levy of penalty are that there were disallowances by the Assessing Officer with regard to the contract receipt accounted for in the accounts as compared to that reflected under 26AS statement. The Assessing Officer made the impugned disallowances by holding that the differences in the contract receipts were not reconciled by the 2 Total Transport Systems Ltd.

1.

assessee. Before learned CIT(A) assessee submitted additional evidences. In the A.Y. 2010-11 the learned CIT(A) rejected additional evidences and confirmed the addition. The assessee did not file appeal against the addition confirmed by learned CIT(A). In A.Y. 2011-12 the learned CIT(A) remanded the matter to the Assessing Officer. However, the Assessing Officer rejected the additional evidences on the ground that he is not satisfied by the reconciliation even though he admitted that the sales/contract received attributed to the concerned party was more than that reflected by the statement 26AS. The assessee did not appeal against the addition. On these additions penalty was levied and confirmed.

3.

Against this order assessee has filed appeal before us.

4.

We have heard both the counsel and perused the records. We find that it is settled law that quantum proceedings and penalty proceedings are separate. Confirmation of addition in the quantum proceedings does not ipso facto means that penalty has to be confirmed. In this case we note that in one of the years assessee has submitted additional evidences which were rejected by learned CIT(A) on the ground that assessee did not submit the same before the Assessing Officer. In another year the A.O. rejected the remanded evidences on the ground that he was not satisfied with the reconciliation even though he did not dispute that the contract receipt accounted for from the disputed party was more than that reflected in the 26AS statement. In these facts in our considered opinion the conduct of the assessee is not contumacious so as to warrant visit by the rigours of penalty u/s. 271(1)(c) of the Act. This view is supported by the decision of the larger bench of Hon'ble Supreme Court in the case of Hindustan Steel Vs. State of Orissa Vs. (83 ITR 26). In this case it was expounded that the authority may not levy the penalty if the conduct of the assessee is not found to be contumacious. In the present case we find that in one of the years assessee has duly submitted the reconciliation although at the appellate stage which were rejected by learned CIT(A) on the ground that he was not admitting the same as the same were not produced before the 3 Total Transport Systems Ltd.

Assessing Officer. In another year Assessing Officer rejected the evidences of reconciliation even though he admitted that the contract receipts from the disputed party accounted for were more than that reflected in the statement 26AS.

5.

In the background of the aforesaid discussion and precedent in our considered opinion the conduct of the assessee is not contumacious so as to levy of penalty u/s. 271(1)(c) of the Act.

6.

In these circumstances, we set aside the orders of the authorities below and delete the penalty.

7.

In the result, appeals by the assessee are allowed.

Order has been pronounced in the Court on 4.9.2019.

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