Total Transport Systems Ltd. v. ACIT 11(3)(1), Mumbai
[Citation -2019-LL-0904-72]

Citation 2019-LL-0904-72
Appellant Name Total Transport Systems Ltd.
Respondent Name ACIT 11(3)(1), Mumbai
Court ITAT-Mumbai
Relevant Act Income-tax
Date of Order 04/09/2019
Assessment Year 2010-11
Judgment View Judgment
Keyword Tags contract receipt • levy of penalty • additional evidence
Bot Summary: Brief facts of the case leading to the levy of penalty are that there were disallowances by the Assessing Officer with regard to the contract receipt accounted for in the accounts as compared to that reflected under 26AS statement. Before learned CIT(A) assessee submitted additional evidences. The assessee did not file appeal against the addition confirmed by learned CIT(A). The Assessing Officer rejected the additional evidences on the ground that he is not satisfied by the reconciliation even though he admitted that the sales/contract received attributed to the concerned party was more than that reflected by the statement 26AS. The assessee did not appeal against the addition. In these facts in our considered opinion the conduct of the assessee is not contumacious so as to warrant visit by the rigours of penalty u/s. In the present case we find that in one of the years assessee has duly submitted the reconciliation although at the appellate stage which were rejected by learned CIT(A) on the ground that he was not admitting the same as the same were not produced before the 3 To t a l T r an s p o r t Sy s te m s L td. In the background of the aforesaid discussion and precedent in our considered opinion the conduct of the assessee is not contumacious so as to levy of penalty u/s.


THE INCOME TAX APPELLATE TRIBUNAL E Bench, Mumbai Before Shri Shamim Yahya (AM) & Shri Ravish Sood (JM) I.T.A. No. 3828/Mum/2018 (Assessment Year 2010-11) I.T.A. No. 3829/Mum/2018 (Assessment Year 2011-12) Total Transport Systems Ltd. ACIT 11(3)(1) 701-705, T Square, Opp. Vs. Aayakar Bhavan Chandivali Petrol Pump M.K. Road Saki Vihar Road, Sakinaka Mumbai-400 020. Andheri East Mumbai-400 072. PAN : AAACT3276C (Appellant) (Respondent) Assessee by Shri C.S. Ananthan & Shri Nitin A. Joshi Department by Shri Rajeev Gubgotra Date of Hearing 19.8.2019 Date of Pronouncement 04.9.2019 ORDER Per Shamim Yahya (AM) :- These are appeal by assessee directed against orders of learned CIT(A) and pertain to A.Ys. 2010-11 & 2011-12. grounds of appeal related to levy of penalty under section 271(1)(c) of I.T. Act as under :- A.Y. 2010-11 Rs. 3,25,000/- A.Y. 2011-12 Rs. 1,65,000/- 2. Brief facts of case leading to levy of penalty are that there were disallowances by Assessing Officer with regard to contract receipt accounted for in accounts as compared to that reflected under 26AS statement. Assessing Officer made impugned disallowances by holding that differences in contract receipts were not reconciled by 2 To t l T r s p o r t Sy s te m s L td. assessee. Before learned CIT(A) assessee submitted additional evidences. In A.Y. 2010-11 learned CIT(A) rejected additional evidences and confirmed addition. assessee did not file appeal against addition confirmed by learned CIT(A). In A.Y. 2011-12 learned CIT(A) remanded matter to Assessing Officer. However, Assessing Officer rejected additional evidences on ground that he is not satisfied by reconciliation even though he admitted that sales/contract received attributed to concerned party was more than that reflected by statement 26AS. assessee did not appeal against addition. On these additions penalty was levied and confirmed. 3. Against this order assessee has filed appeal before us. 4. We have heard both counsel and perused records. We find that it is settled law that quantum proceedings and penalty proceedings are separate. Confirmation of addition in quantum proceedings does not ipso facto means that penalty has to be confirmed. In this case we note that in one of years assessee has submitted additional evidences which were rejected by learned CIT(A) on ground that assessee did not submit same before Assessing Officer. In another year A.O. rejected remanded evidences on ground that he was not satisfied with reconciliation even though he did not dispute that contract receipt accounted for from disputed party was more than that reflected in 26AS statement. In these facts in our considered opinion conduct of assessee is not contumacious so as to warrant visit by rigours of penalty u/s. 271(1)(c) of Act. This view is supported by decision of larger bench of Hon'ble Supreme Court in case of Hindustan Steel Vs. State of Orissa Vs. (83 ITR 26). In this case it was expounded that authority may not levy penalty if conduct of assessee is not found to be contumacious. In present case we find that in one of years assessee has duly submitted reconciliation although at appellate stage which were rejected by learned CIT(A) on ground that he was not admitting same as same were not produced before 3 To t l T r s p o r t Sy s te m s L td. Assessing Officer. In another year Assessing Officer rejected evidences of reconciliation even though he admitted that contract receipts from disputed party accounted for were more than that reflected in statement 26AS. 5. In background of aforesaid discussion and precedent in our considered opinion conduct of assessee is not contumacious so as to levy of penalty u/s. 271(1)(c) of Act. 6. In these circumstances, we set aside orders of authorities below and delete penalty. 7. In result, appeals by assessee are allowed. Order has been pronounced in Court on 4.9.2019. Sd/- Sd/- (RAVISH SOOD) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated : 4/9/2019 Copy of Order forwarded to : 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai Total Transport Systems Ltd. v. ACIT 11(3)(1), Mumbai
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