Income Tax Appellate Tribunal - Mumbai
Pisupati Jagannathan Venkatesh, ... vs Assistant Commissioner Of Income Tax - ... on 13 March, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH, MUMBAI
BEFORE SHRI RAJESH KUMAR, AM AND SHRI AMARJIT SINGH, JM
आयकर अपील सं / I.T.A. No.449/Mum/2018
(निर्धारण वर्ा / Assessment Year: 2009-10)
Shri Pisupati Jagannathan बिधम/ ACIT Circle -1
Venkatesh Vs. 6th Floor, Ahar I.T. Park,
N. A. Kulakrni, Advocate Road No. 16-Z, Wagle Indl,
wadal Building, 1st Floor, Thane-400604.
Manpada Road, Near, Near
DNSB Bank, Dombivali
East-421201.
स्थायी लेखा सं ./जीआइआर सं ./PAN/GIR No. : AHOPP1050E
(अपीलाथी /Appellant) .. (प्रत्यथी / Respondent)
Assessee by: Shri N.A. Kulkarni (AR)
Revenue by: Shri Abi Rama Kartikiyen (DR)
सुनवाई की तारीख / Date of Hearing: 27.02.2019
घोषणा की तारीख /Date of Pronouncement: 13.03.2019
आदे श / O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 30.11.2017 passed by the Commissioner of Income Tax (Appeals)-1, Mumbai [hereinafter referred to as the "CIT(A)"] relevant to the A.Y. 2009-10 wherein the penalty levied by the AO has been ordered to be confirmed.
2. The assessee has raised the following grounds: -
"1. On the facts & the circumstances, whether the CIT(A) has right in holding the view that after allowing the benefit of u/s 54f up to ITA. No.449/M/2018 A.Y. 2009-10 the period denoted u/s 139(4) remaining amount of capital gain if so be liable to levy of penalty u/s 271(1)(c) as placing the inaccurate particular before the AO.
2 Also holding that the accrued interest on fixed deposit which is reflecting on the site upon 26AS shall be formed the placement of inaccurate particulars and concealed income as per the section 271(1)(C) of the Act."
3. The brief facts of the case are that the assessee filed his return of income on 29-07.2009 declaring total income to the tune of Rs.58,63,540/- for the A.Y. 2009-10. Thereafter, the case was selected for scrutiny, hence, notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The assessee sold his flat and invested the capital gain in new residential property. The assessee received the capital gain in sum of Rs.65,98,740/- and investment has been shown in sum of Rs.67,27,087/-. Factually, the assessee has invested in sum of Rs.44,36,738/- till 31st July 2009. The capital gain in sum of Rs.21,59,002/- was not invested, therefore, the same was brought to tax. The assessee did not show the interest accrued from his bank with HDFC Bank on F.D. at Rs.4,34,222/- and interest from the SBI and ICICI Bank totaling in sum of Rs.20,842/-, therefore, the same was also brought to tax. Since the claim of the assessee was wrong, hence, the penalty proceeding was initiated. The Assessing Officer levied the penalty in sum of Rs.6,43,907/- Feeling aggrieved, the assessee filed an appeal before the CIT(A) who partly allowed the clam of the assessee, but the assessee was not satisfied, therefore, the assessee has filed the present appeal before us.
2ITA. No.449/M/2018 A.Y. 2009-10 ISSUE Nos. 1 & 2
4. Issue nos. 1 & 2 are inter-connected, therefore, are being taken up together for adjudication. However both the issues are in connection with the confirmation of the penalty by CIT(A). The Ld. Representative of the assessee has argued that the penalty was levied by AO on account of wrong claim of the assessee in connection with the long term capital gain and in appeal before the Hon'ble ITAT the issue has been set aside and remanded before the AO for afresh adjudication by virtue of order dated 13.09.2017 in the assessee's own case in ITA. No.3715/M/2013, therefore, the penalty is not liable to be sustainable. It is also argued that so far as the non-offering of the interest in sum of Rs.4,55,064/- on FDRs is concerned, the TDS has been deducted in sum of Rs.44,725/- by deductor and the assessee was of the view that the liability of tax would assessed at the end of maturity, therefore, no penalty is leviable. However, on the other hand, the ld. Representative of the Department has strongly relied upon the order passed by the CIT(A) in question. On appraisal of the penalty order dated 19.03.2014 on record, we noticed that the AO has levied the penalty on account of wrong claim u/s 54 of the Act and on account of non-offering the interest income upon FD in sum of Rs.4,55,064/-. So far as the capital gain is concerned, the Hon'ble ITAT in the assessee's own case set aside the issue and restored the issue before the AO by virtue of order dated 13.09.2017 in ITA. No. 3 ITA. No.449/M/2018 A.Y. 2009-10 3715/M/2013. No demand is in existence so in the said circumstances, the penalty has no leg to stand, hence, is not liable to be sustainable in the eyes of law. So far as the issue of non-offering the interest income in sum of Rs.4,55,064/- on FD is concerned, we are of the view that it is a bonafide mistake which has not been offered in the return of income properly. However, the TDS has been deducted. There is no loss of revenue so no penalty is leviable. Taking into account, fact and circumstances, we are of the view that the finding of the CIT(A) is wrong against law and facts and is not liable to be sustainable in the eyes of law, therefore, we set aside the finding of the CIT(A) on this issue and delete the penalty.
5. In the result, the appeal filed by the assessee is hereby ordered to be allowed.
Order pronounced in the open court on 13.03.2019.
Sd/- Sd/-
(RAJESH KUMAR) (AMARJIT SINGH)
ले खध सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER
मुंबई Mumbai; ददनां क Dated : 13.03.2019.
Vijay
4
ITA. No.449/M/2018
A.Y. 2009-10
आदे श की प्रनिनलनि अग्रेनर्ि/Copy of the Order forwarded to :
1. अपीलाथी / The Appellant
2. प्रत्यथी / The Respondent.
3. आयकर आयु क्त(अपील) / The CIT(A)-
4. आयकर आयु क्त / CIT
5. दवभागीय प्रदतदनदध, आयकर अपीलीय अदधकरण, मुंबई / DR, ITAT, Mumbai
6. गार्ड फाईल / Guard file.
आदे शधिुसधर/ BY ORDER, सत्यादपत प्रदत //True Copy// उि/सहधिक िंजीकधर /(Dy./Asstt. Registrar) आिकर अिीलीि अनर्करण, मुंबई / ITAT, Mumbai 5