ANUJA ANIL JOGLKEAR,MUMBAI vs. ITO 5(1)(3), MUMBAI

O R D E R

PER AMARJIT SINGH, JM:

ITA. No.6314/M/2016 A.Y. 2010-11 disclosure of salary of Rs.2,75,400/- from C.S. Infosys Ltd. and S.B. interest of Rs.4,563/- remained to be disclosed in the return through oversight and there was no intention to defraud the department by not disclosing the same, relying on the judgment of the Supreme Court in the case of Price Water House Coopers Pvt. Ltd. reported in 248 ITR page 306. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the levy of penalty u/s 271(1)(c) without discussing why the case law submitted in support of the claim that the non disclosure of salary from C.S. Infosys Pvt. Ltd. of Rs.2,75,400/- and S.B. Bank Interest was not applicable to the facts of the appellant’s case. The appellant craves leave to add, alter, amend or delete any grounds of appeal either before or during the course of hearing of the appeal.” The brief facts of the case are that the assessee filed her return 3. of income declaring total income to the tune of Rs.21,08,064/- on 15.03.2012. The case was selected for scrutiny and order u/s 143(3) of the Act was passed on 29.01.2013 raising the addition to the tune of Rs.2,75,400/- on account of salary and Rs.4,563/- on account of interest. The Assessing Officer initiated penalty proceeding. Notice u/s 274 r.w.s. 271 of I.T. Act dated 29.01.2013 was issued to the assessee. No reply was submitted, thereafter, again notice Dated 14.05.2013 was issued. After considering the reply, the Penalty to the tune of Rs.90,000/- was imposed. The assessee filed an appeal before the CIT(A) who confirmed the penalty order, therefore, the assessee has filed the present appeal before us.

ITA. No.6314/M/2016 A.Y. 2010-11 Representative of the assessee has argued that the assessee filed the return of income on account of bonafide advise of CA therefore no penalty is leviable in view of law settled in Lachman Chaturbhuj Java Vs. RG Nitsure and Ors. 132 ITR 631 and Price Water House Cooper 248 ITR 306. It is also argued that there was no concealment of income and furnishing of inaccurate particulars of income ,therefore, no penalty is leviable in view of the law settled in Reliance Petro Product Ltd. 322 ITR 158. On the other hand Ld Representative of the department has placed reliance upon the order passed by the CIT(A) in question. After due considering of the argument advanced by Ld. Representative of the parties and perusing the record, we noticed that the assessee was the director of two companies namely M/s. C.S. Infocom P. Ltd. & C. S. Infosys P. Ltd. She was receiving the salary from both the companies during the year of assessment. She received the salary from C.S. Infocom Pvt. Ltd. to the tune of Rs.21,08,064/- and from C.S. Infosys Pvt. Ltd. to the tune of Rs.2,75,400/-. She only offered the income to the tune of Rs.21,08,064/- i.e. income from one company to tax however, failed to disclose the salary received from C.S. Infosys Pvt. Ltd. The TDS was deducted upon the said income to the tune of Rs.40,000/-. The C.A filed the return of the assessee in which the said salary was not shown. When the said income was already subject to TDS no doubt in the said circumstances there is no reason to conceal the said income. It can only be happened due to the omission or mistake. The assessee

ITA. No.6314/M/2016 A.Y. 2010-11 was getting the salary from two companies. However, she failed to show the salary to the tune of Rs. 2,75,400/- received from C.S. Infosys Pvt. Ltd. If she had an intention to conceal the income then she should conceal the salary /income received from the M/s C.S. Infocom Pvt. Ltd. No mala fide seems in this case. It is a case in which the assessee filed the return of income on the advise of the C.A in which the C.A. forgot to highlight the income received by the assessee from M/s. C.S. Infocom Pvt. Ltd. In view of the said circumstances, we are of the view that it is not a case in which the penalty is leviable. In this regard we also find in support of law settled in Lachman Chaturbhuj Java Vs. RG Nitsure and Ors. 132 ITR 631 and Price Water House Cooper 248 ITR 306. Therefore, we set aside the finding of the CIT(A) on this issue and delete the penalty.