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Mr. Mahendra Motilal Banthia Versus ACIT/DCIT, CC-39, Mumbai

2016 (8) TMI 804 - ITAT MUMBAI

Penalty imposed u/s.271(1)(c) - non payment of TDS and advance tax - Held that:- The corresponding income with respect to the tax deducted at source and also the amount of advance tax paid by the assessee not only before the last date of financial year but also before search is equal to the amount of income returned by the assessee. It means entire income of the assessee was subject to TDS or the assessee himself has advance tax paid before the end of the financial year. Under these circumstance .....

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nded date of filing of return u/s.153A, which is supported by judicial pronouncements as cited by ld. AR, we restore the matter back to the file of AO for deciding afresh after giving due opportunity to the assessee. - Non payment of admitted tax as required under section 249(4)(a) - Held that:- Considering the fact that there is tax deducted at source out of assessee’s income which has to be taken into account while computing the tax paid by the assessee and also considering the challans pl .....

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Mumbai, for the assessment years 2007-2008 & 2009-2010, in the matter of imposition of penalty u/s.271(1)(c) of the I.T.Act. ITA Nos.1168&7151/Mum/2013(AY : 2007-08 & 2008-09) 2. Rival contentions have been heard and record perused. Facts in brief are that a search u/s.132 was carried out at assessee s business and residential premises on 5-3-2009. During the course of search statement u/s.132(4) was recorded wherein assessee has offered ₹ 3 crores for the previous year ending .....

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received only after 31-3-2010 giving the time of 20 days. The assessee filed return of income on 23-4-2010 i.e after 31-3-2010 due to the reason that search and seizure action took place on 5-3-2009 before the due date of filing of return of income u/s.139(4) i.e. 31-3-2009. As per ld. AR since notice u/s.153A received only after 31-3-2010 the assessee had no option but to file the return as per the provision of section 153A of the Act. The assessee filed his return declaring taxable income  .....

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tely notice was received u/s.153A in April, 2010, the assessee has duly filed his return of income within the date stipulated u/s.139(4) r.w.s.153A of the I.T.Act. 4. Ld. AR also invited our attention to the TDS deducted on the income earned during the year as well as advance tax paid before the end of the previous year, on the income earned TDS of ₹ 29,56,713/- was deducted till 31/03/2008 the corresponding income of which comes to ₹ 2,95,67,130/-. In addition to that assessee had p .....

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al. 5. The AO did not convince with the assessee s argument and levied penalty under the provisions of Explanation 5A to Section 271(1)(c) of the I.T.Act. 6. By the impugned order, CIT(A) confirmed the action of AO, against which assessee is in further appeal before us and has raised following grounds :- 1. On the facts and circumstances of the case and in law Ld. Commissioner of Income Tax (Appeals) has erred in confirming penalty imposed u/s.271(1)(c) without appreciating the facts of the case .....

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153A. The AO issued notice u/s. 153A which was received only after 31.03.2010 giving the time of 20days. The assessee filed his return of income on 23/04/2010 i.e. after 31.03.2010 due to the reason that search and seizure action before the due date of filing of return of income u/s. 139(4) i.e. on 05.03.2009. Since the notice u/s. 153A received only after 31.03.2010 the assessee had no option but to file the return as per the provision of section 153A of the Act. In view of the above, it was c .....

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ithin the time stipulated. Hence from the series of events it can be said that the assessee filed his return of income within the due date stipulated u/s. 139(4) of the IT Act 1961 r.w.s. 153A of the IT Act 1961. Reliance was placed on latest Chennai Tribunal decision, wherein the Tribunal have held that return filed in response to notice u/s. 153A should be treated as filed u/s. 139(1). It was contended by ld. AR that from the aforesaid facts your honour will appreciate and admit that Explanati .....

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6 (Gauhati) CITvJagriti Aggarwal (2011) 3391TR 610 (P&H) CIT v Jagtar Singh Chawla ITA No. 71 of 2012 vide order dated 20103/2013 Fathimabai v ITa ITA No. 435 of 2004 vide order dated 17/10/2008 Lastly reliance was placed on the jurisdictional Hon'ble ITAT decision in the case of ITA Central (Thane) v Gope M Rochlani ITA No. 7737 mum/2011 AY 2008-09 dated 24/05/2013 Mumbai 'G' Bench and also decision in the case of : Kshiti R. Maniar Mumbai vs ACIT Asst CIT Central Circle vs Ajit .....

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08 & the corresponding income of which comes to more than 90Lacs. Against these payment of taxes assessee filed return of income declaring 2,00,04,116/- which almost covers the corresponding TDS & S.A. Tax. Since both the taxes were paid not only before the search action but before the due date of filing of ROI, and covers the full income disclosed in ROI filed the Ld AO's contention that assessee has disclosed this income only after the search is not correct and hypothetical. Hence .....

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the assessee was subject to TDS or the assessee himself has advance tax paid before the end of the financial year. Under these circumstances contention of ld. AR that the AO was not justified in holding that assessee has concealed its income have some merits. We also found that TDS as well as advance tax has been paid by the assessee not only before the due date of filing of return of income but also before search. Under these circumstances, we have to see the intention of assessee as to whether .....

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