9911796707
TMI Blog2020 (11) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... t detected by the assessee since it has debited the same expenditure in 2 different Ledger accounts. As the mistake was pointed out and the assessee has reversed the whole provisions made by the assessee at the year end 31.03. 2008 to the extent of ₹ 6,06,680/-. In our view this type of mistakes is possible while making provisional entries at the year end. With regards to STT claim also, the assessee has failed to disallow the same in computation statement and this mistake is out of oversight. Considering the total income declared by the assessee, we do not see any reason that assessee would indulge in concealing the income by furnishing inaccurate particulars to the extent of expenditure/income disallowed by the AO and the case of the assessee is similar to the case of Price Waterhouse [ 2012 (9) TMI 775 - SUPREME COURT ]. Therefore we are inclined to accept the contention of the assessee and delete the penalty levied by the assessing officer. - Decided in favour of assessee. - Shri C. N. Prasad, JM And Shri S. Rifaur Rahman, AM For the Appellant : Shri Ravikant Pathak, AR For the Respondent : Ms. Bharati Singh, DR ORDER PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER: The present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he particulars of income furnishing inaccurate particulars of income by relying on the following cases: 1. UOI versus Dharmendra Textile Processors (2007) 295 ITR 244 (SC) 2. Zoom Communication (P) Ltd 40 DTR 249 (2010) 8. Aggrieved with the above order, assessee preferred an appeal before Ld. CIT(A) along with detailed submission. After considering the submissions of the assessee, Ld CIT(A) gave partial relief to the assessee by deleting the penalty on foreign travel expenses by observing that the disallowance is made on ad hoc basis that is at an estimated figure, therefore the penalty cannot be levied and confirmed the penalty levied by the AO on the other additions. 9. Aggrieved with the above order, assessee is in appeal before us contesting the penalty confirmed by the Ld CIT(A). 10. Before us, Ld AR submitted written submission along with ledger copies of legal and professional fees, auditors remuneration and M.M.Dubey account for the year ended 31.03.2008 and 31.03.2009. He brought to our notice the relevant entries recorded by the assessee in the subsequent years and submitted that the assessee has made genuine mistake inadvertently and prayed that penalty may be deleted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as requested to disallow the same while passing the order u/s 143(3) of the Act. STT remained to be disallowed due to mistake and oversight. 4. The assessee submits that there was no suppression of facts but a genuine mistake of debiting amount paid to auditor twice and not disallowing the STT. There was no attempt on the part of the assessee to hideor conceal the income so as to avoid the payment of tax. The said double debit of auditors remuneration and disallowance of STT were an inadvertent error; hence, penalty levied shall be deleted 5. In view of the above facts, the assessee prays that the penalty confirmed by the CIT(A) shall be deleted. 6. Assessee rely on following judicial pronoucements: - Price Waterhouse Coopers (P.) Ltd. vs CIT [348ITR 306 SC] - CIT vs. SomanyEvergree Knits Ltd.[ 352 ITR 592 (Bom)] - CIT vs M/s. Bennett Coleman Co. Ltd. [259 CTR (Bom) 383] - Ambico Integrated Marketing vs ACIT [ITA 1350/Mum/2017] - Spanco Technologies (I) (P) Ltd vs DCIT [ITA 5827/Mum/2014] 7. AO has relied on the judgment of Hon'ble Delhi High Court in the case of Zoom Communication [327 ITR 510 (Del)]. The assessee submits that the above decision has no application in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore we are inclined to accept the contention of the assessee and delete the penalty levied by the assessing officer. 14. In the net result, the appeal filed by the assessee is allowed 15. It is pertinent to mention here that this order is pronounced after a period of 90 days from the date of conclusion of the hearing. In this regard, we place reliance on the decision of co-ordinate bench of this Tribunal in the case of JSW Ltd in ITA Nos. 6264 6103/Mum/2018 dated 14.5.2020, wherein this issue has been addressed in detail allowing time to pronounce the order beyond 90 days from the date of conclusion of hearing by excluding the days for which the lockdown announced by the Government was in force. The relevant observations of this tribunal in the said binding precedent are as under:- 7. However, before we part with the matter, we must deal with one procedural issue as well. While hearing of these appeals was concluded on 7th January 2020, this order thereon is being pronounced today on 14th day of May, 2020, much after the expiry of 90 days from the date of conclusion of hearing. We are also alive to the fact that rule 34(5) of the Income Tax Appellate Tribunal Rules 1963, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by any extraordinary circumstances. 9. Let us in this light revert to the prevailing situation in the country. On 24th March, 2020, Hon ble Prime Minister of India took the bold step of imposing a nationwide lockdown, for 21 days, to prevent the spread of Covid 19 epidemic, and this lockdown was extended from time to time. As a matter of fact, even before this formal nationwide lockdown, the functioning of the Income Tax Appellate Tribunal at Mumbai was severely restricted on account of lockdown by the Maharashtra Government, and on account of strict enforcement of health advisories with a view of checking spread of Covid 19. The epidemic situation in Mumbai being grave, there was not much of a relaxation in subsequent lockdowns also. In any case, there was unprecedented disruption of judicial wok all over the country. As a matter of fact, it has been such an unprecedented situation, causing disruption in the functioning of judicial machinery, that Hon ble Supreme Court of India, in an unprecedented order in the history of India and vide order dated 6.5.2020 read with order dated 23.3.2020, extended the limitation to exclude not only this lockdown period but also a few more da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only in consonance with the letter and spirit of rule 34(5) but is also a pragmatic approach at a time when a disaster, notified under the Disaster Management Act 2005, is causing unprecedented disruption in the functioning of our justice delivery system. Undoubtedly, in the case of Otters Club Vs DIT [(2017) 392 ITR 244 (Bom)], Hon ble Bombay High Court did not approve an order being passed by the Tribunal beyond a period of 90 days, but then in the present situation Hon ble Bombay High Court itself has, vide judgment dated 15th April 2020, held that directed while calculating the time for disposal of matters made time- bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly . The extraordinary steps taken suomotu by Hon ble jurisdictional High Court and Hon ble Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words ordinarily , in the light of the above analysis of the legal position, the period during which lockout was in force is to exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
