BIPIN B SHAH,MUMBAI vs. ACIT 25(1), MUMBAI

The brief facts of the cases are that the assessee in his return for the A.Y. 2008-09 had shown the expenditure to the tune of Rs.13,60,000/- and the party against whom the expenditure was shown confirmed the amount to the tune of Rs.81,982/-. Therefore the remaining amount to the tune of Rs.12,78,018/- was considered towards income of assessee. Subsequently, the penalty proceedings u/s. 271(1)(c) was initiated and the penalty to the tune of Rs.4,34,398/- was imposed. So far as the other appeal is concerned, the assessee filed the return showing his income to the tune of Rs.54,38,940/-. Assessing Officer received the information from the ITO Ward 19(1)(4), Mumbai that the assessee showed the expenditure to the tune of Rs.13,62,227/- against M/s. Stivan Construction who did not confirm the same. Thereafter, the penalty to the tune of Rs.2,70,516/- was imposed. The penalty orders were challenged and the learned CIT(A) dismissed the appeal of the assessee by virtue of order dated 23.04.2014. Therefore, feeling aggrieved the present appeals has been filed.

We have heard the arguments advanced by the learned representative of the parties and have gone through the case files carefully. The learned representative of the assessee has argued that the assessee did not conceal the particulars of his income nor furnished any inaccurate particulars in his return therefore, no penalty was leviable upon him. It is argued that the assessee had already deducted the T.D.S. on the amount paid to M/s. Stivan Construction and if M/s. Stivan Construction failed to reflect the said amount in the account books then in the said A.Y. 2008-09 &2009-10

By going through the file properly and perused the record it came into the notice that the assessee had deducted the T.D.S. on the amount of Rs.13,60,000/- shown to be paid to M/s. Stivan Construction in the A.Y. 2008-09 and also deducted the tax on the amount of Rs.13,62,227/- paid to M/s. Stivan Construction in the A.Y. 2009-10. Apparently, there is no concealment by the appellant and income tax had already been deducted and paid on the amount in question which has not been shown by the M/s. Stivan Construction in their books of accounts. The orders passed by learned CIT(A) in question speaks that the assessee had already deducted the T.D.S. on the amount which has been paid to M/s. Stivan Construction. The assessee did not furnish inaccurate particulars in its return nor concealed anything to evade the tax. No doubt, the entries of the amount which has been paid to M/s. Stivan Construction has not been reflected by them in their books of account but how the assessee is responsible for that it is not apparent on record. The assessee nowhere evaded tax nor furnished any inaccurate particulars if any. By relying the law settled in CIT Vs. Reliance Petroproducts (322 ITR 158)(SC) we are of the view that the order’s in question are not liable to be sustainable in the eyes of law. Accordingly, we set aside both the orders in question being the case of the assessee is not the case to levy the penalty. A.Y. 2008-09 &2009-10

In the result, both the appeals of the assessee are hereby allowed.

""यथ" / The Respondent. 3. आयकर आयु"त(अपील) / The CIT(A)- 4. आयकर आयु"त / CIT

"वभागीय ""त"न"ध, आयकर अपील"य अ"धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड" फाईल / Guard file. आदेशानुसार/ BY ORDER, स"या"पत ""त //// उप/सहायक पंजीकार (Dy./Asstt.