Income Tax Appellate Tribunal - Mumbai
Tamanjit H, Mehta, Mumbai vs Asst Cit Rg 20(3), Mumbai on 30 August, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "E", MUMBAI
Before Shri G S Pannu, Accountant Member &
Shri Pawan Singh, Judicial Member
ITA No. 832/Mum/2017
Assessment Year : 2009 - 2010
Shri Tamanjit H Mehta Assistant CIT Range 20(3)
002, Ground Floor, Mumbai
Acorpollis Military Road,
Marol Maroshi, Andheri (E)
Vs
Mumbai 400 059
PAN ALVPM7512R
(Appellant) (Respondent)
Appellant By : Ms Vinita Shah
Respondent By : Shri V Justin
Date of Hearing : 23.08.2017 Date of Pronouncement : 30.08.2017
ORDER
Per Pawan Singh, Judicial Member:
This appeal by the assessee u/s. 253 of the I T Act, is directed against the order of the CIT(A)-37, Mumbai, dated 29.11.2016 for A Y 2009-10. The assessee has raised the following grounds of appeal:
"1) On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in levying a penalty of Rs.74,472/- u/s.271(1)(c) of the Income Tax Act 1961, being 300% of the tax sought to be evaded, without considering the facts and circumstances of the case.
2) On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of Learned 2 ITA No.832/Mum/2017 Tamanjit H Mehta Assessing Officer in imposing a penalty on the issue of addition made of Rs.73,0347- on account of alleged undisclosed professional fees on the basis of AIR information without appreciating the fact that the said income does not belongs to the appellant.
3) The appellant craves leave to add, amend, alter or delete the said ground of appeal.
2. The brief facts of the case are that assessee is an individual and running a business centre in proprietary capacity in the name of M/s. TDC Business Centre. For the impugned assessment year, the assessee filed his return of income on 30.09.2009 declaring total income at ` 21,28,380/- The assessment was completed u/s. 143(3) on 30.11.2011. While passing the assessment order, the Assessing Officer made disallowance of 10% of expenses consisting of motor car depreciation, business promotion expenses, conveyance expenses, interest on motor car loan, motor car expenses and telephone expenses and further made disallowance of profession/technical fees amounting to ` 73,034/-. The Assessing Officer initiated penalty proceedings in respect of disallowance of professional/technical fees. He levied penalty @300% on the tax sought to be evaded. On appeal, the CIT(A) confirmed the order of the Assessing Officer. Aggrieved, the assessee is in appeal before us.
3. We have heard both the parties and have perused the material on record along with the orders of the authorities below. The learned AR of the assessee argued that the Assessing Officer levied penalty@300% on the tax 3 ITA No.832/Mum/2017 Tamanjit H Mehta sought to be evaded without mentioning any specific reason. It was further argued that the assessee filed his reply dated 13.05.2014 in response to notice u/s. 274 r.w.s 271 and explained the fact that the income is duly reflecting in the regular books of accounts of the third party and the same has been duly offered for taxation by the said party and that the said addition has been made solely on technical grounds and typographical error quoting the wrong PAN while filing TDS returns. The assessee in his reply has furnished satisfactory explanation for substantiating his defence. The assessee has not furnished any inaccurate particulars or concealed any materials. On the other hand, the learned DR for the Revenue has relied on the order of the Assessing Officer.
4. The Assessing Officer made addition on the basis of AIR information. On the basis of this information received, the assessee was asked to furnish the details of receipts in the name of fees for professional/technical services. The assessee submitted one TDS certificate which is pertaining to other concern, the same was accepted. But in respect of the other one amounting to ` 73,034/- in the case of Atlas documentary facilitators Co. Pvt. Ltd., the assessee could not furnish required documents. The Assessing Officer instead of making any further inquiries made addition of equal amount to the total income of the assessee. The Assessing Officer initiated penalty for similar addition. The assessee, further in reply to the notice u/s. 274 r.w.s. 4 ITA No.832/Mum/2017
Tamanjit H Mehta 271, contended that the addition was made only for the reason that in the AIR Information, due to typographical error in quoting wrong PAN was reflected in the information of the assessee. The assessee further contended that the income is duly reflecting in the regular books of accounts of the third party and the same has been duly offered for taxation by the said party. We have further noticed that the Assessing Officer has neither made any further inquiry nor brought any incriminating material on record to prove that the information reflecting in the AIR Information related to the assessee and not to any other person or third party. The Assessing Officer levied penalty @300% on the tax sought to be evaded without making any further inquiry. In our considered view, the assessee has substantiated and explained the fact. The explanation of the assessee was bona fide, which has not been considered by the Assessing Officer while passing the penalty order. In our view, the penalty order is not sustainable and the same is set aside.
5. In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 30th day of August, 2017.
Sd/- Sd/-
(G S Pannu) (Pawan Singh)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai; Dated: 30th August, 2017
SA
5
ITA No.832/Mum/2017
Tamanjit H Mehta
Copy of the Order forwarded to :
1. The Appellant.
2. The Respondent.
3. The CIT(A),Mumbai
4. The CIT
5. DR, 'E' Bench, ITAT, Mumbai
BY ORDER,
#True Copy #
Assistant Registrar
Income Tax Appellate Tribunal, Mumbai