Smt. Kavita Jetwani, Gwalior V. I.T.O1(1), Gwalior

ITA 10/AGR/2014

• Counselvise Citation: 1020314 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 20-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

I.T.A. NO. 10/AGR/2014 ASSESSMENT YEAR 2007-08 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA (SMC) BENCH, AGRA [CORAM:PRAMOD KUMAR AM ] I.T.A. NO. 10/AGR/2014 ASSESSMENT YEAR: 2007-08 SMT. KAVITA JETWANI, ..APPELLANT SHIV SADAN, APTE KA BADA, GWALIOR. [PAN:ABYPJ 5868 L ] VS. INCOME-TAX OFFICER, .RESPONDENT WARD 1(1), GWALIOR. APPEARANCES BY: NONE FOR THE APPELLANT AMIT SHUKLA FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JUNE 19 , 2015 DATE OF PRONOUNCING THE ORDER : JUNE 24 , 2015 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CHALLENG ED CORRECTNESS OF THE ORDER DATED 18 TH OCTOBER 2013 PASSED BY THE CIT(A) CONFIRMING PENAL TY OF RS.27,200/- IMPOSED ON THE ASSESSEE, UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2007-08. 2. NONE APPEARED FOR THE ASSESSEE BUT HAVING REGARD TO THE FACT THAT THE ISSUE INVOLVED IN APPEAL IS A SMALL ISSUE WITHIN NA RROW COMPASS OF MATERIAL FACTS, I CONSIDER IT APPROPRIATE TO PROCEED WITH TH E MATTER EXPARTE QUA THE ASSESSEE. LEARNED DEPARTMENTAL REPRESENTATIVE IS HE ARD, RECORDS ARE PERUSED AND FACTS OF THE CASE, IN THE LIGHT OF THE APPLICABLE LEGAL POSITION, DULY CONSIDERED. I.T.A. NO. 10/AGR/2014 ASSESSMENT YEAR 2007-08 PAGE 2 OF 3 3. THE RELEVANT MATERIAL FACTS ARE LIKE THIS. DURIN G THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTIC ED THAT WHILE COMPUTING THE CAPITAL GAINS, THE ASSESSEE HAS NOT TAKEN INTO ACCOUNT PROVISIONS OF SECTION 50C WHICH REQUIRE THAT ORDINARILY SALE CONS IDERATION OF THE ASSETS TO BE SUBSTITUTED BY ITS ASSESSED VALUE FOR THE PURPO SES OF STAMP DUTY FOR REGISTRATION PURPOSES. ACCORDINGLY, THE CAPITAL GAI NS WERE RECOMPUTED BY THE ASSESSING OFFICER AT RS.3,52,723 AS AGAINST DECLARE D CAPITAL GAINS OF RS.2,19,415. IT WAS IN THIS BACKDROP THAT THE ASSES SEE WAS IMPOSED PENALTY OF RS.27,200 FOR CONCEALING THE PARTICULARS OF INCO ME AND FURNISHING INACCURATE PARTICULARS OF INCOME. AGGRIEVED, ASSESS EE CARRIED THE MATTER IN APPEAL BUT WITHOUT ANY SUCCESS. LEARNED CIT(A) DISM ISSED THE GRIEVANCE OF THE ASSESSEE AND OBSERVED AS FOLLOWS : 2. I HAVE GONE THROUGH THE WRITTEN SUBMISSIONS FIL ED BY THE APPELLANT CAREFULLY. THERE IS NO DISPUTE ABOUT THE FACT THAT THE AMOUNT OF CAPITAL GAIN TAXABLE IN THE HANDS OF THE APPELLANT WAS RS.3 ,52,723/-.THE APPELLANT DISCLOSED CAPITAL GAIN OF RS.2,19,415/- O NLY IN THE RETURN OF INCOME. THE APPELLANT HAD NOT DISCLOSED CAPITAL GAI N OF RS.1,33,313/-. THE APPELLANT HAS RELIED UPON VARIOUS DECISIONS. I HAVE GONE THROUGH THE DECISIONS QUOTED BY THE APPELLANT. THESE DECISI ONS WERE GIVEN ON DIFFERENT SET OF FACTS. 4. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE ME. 5. I FIND THAT THE ISSUE IN APPEAL IS SQUARELY COVE RED BY A DIVISION BENCH DECISION OF THIS TRIBUNAL IN THE CASE OF RENU HINGO RANI VS. ACIT (ITA NO. 2210/MUM/2010, ORDER DATED 22 ND DECEMBER 2010) WHEREIN THE TRIBUNAL HAS OBSERVED AS FOLLOWS : 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND RE LEVANT RECORD . WE FIND THAT THE AO HAD MADE ADDITION OF RS.9,00,824/- BEIN G DIFFERENCE BETWEEN THE SALE CONSIDERATION AS PER SALE AGREEMENT AND THE VA LUATION MADE BY THE STAMP VALUATION AUTHORITY. THUS, THE ADDITION HAS B EEN MADE BY THE AO BY APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT. IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT THE AO HAS NOT QUESTIONED TH E ACTUAL CONSIDERATION RECEIVED BY THE ASSESSEE BUT THE ADDITION IS MADE P URELY ON THE BASIS OF DEEMING PROVISIONS OF THE INCOME TAX ACT, 1961. THE AO HAS NOT GIVEN ANY FINDING THAT THE ACTUAL SALE CONSIDERATION IS MORE THAN THE SALE CONSIDERATION ADMITTED AND MENTIONED IN THE SALE AGREEMENT. THUS IT DOES NOT AMOUNT TO CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. IT IS I.T.A. NO. 10/AGR/2014 ASSESSMENT YEAR 2007-08 PAGE 3 OF 3 ALSO NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS FAILED TO FURNISH THE RELEVANT RECORD AS CALLED BY THE AO TO DISCLOSE THE PRIMARY FACTS. THE ASSESSEE HAS FURNISHED ALL THE RELEVANT FACTS, DOCU MENTS/MATERIAL INCLUDING THE SALE AGREEMENT AND THE AO HAS NOT DOUBTED THE G ENUINENESS AND VALIDITY OF THE DOCUMENTS PRODUCED BEFORE HIM AND THE SALE C ONSIDERATION RECEIVED BY THE ASSESSEE. UNDER THESE FACTS AND CIRCUMSTANCES, IT CANNOT BE SAID THAT THE ASSESSEE HAS NOT FURNISHED CORRECT PARTICULARS OF I NCOME. MERELY BECAUSE THE ASSESSEE AGREED FOR ADDITION ON THE BASIS OF VALUAT ION MADE BY THE STAMP VALUATION AUTHORITY WOULD NOT BE A CONCLUSIVE PROOF THAT THE SALE CONSIDERATION AS PER THIS AGREEMENT WAS INCORRECT A ND WRONG. ACCORDINGLY THE ADDITION BECAUSE OF THE DEEMING PROVISIONS DOES NOT IPSO FACTO ATTRACT THE PENALTY U/S 271(1)(C ). HENCE IN VIEW OF THE DECISI ON OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V/S RELIANCE PETROPRODUCTS PVT.LTD (SUPRA), THE PENALTY LEVIED U/S 271(1)( C ) IS NOT SUSTAINABLE. THE SAME IS DELETED. 6. RESPECTFULLY FOLLOWING THE VIEWS SO EXPRESSED BY THE DIVISION BENCH, I UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED PENALTY. 7. IN THE RESULT, THE APPEAL IS ALLOWED. PRONOUNCE D IN THE OPEN COURT TODAY ON THIS 24 TH DAY OF JUNE, 2015. SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: THE 24 TH DAY OF JUNE 2015 *AKS/- COPIES TO: (1) THE APPELLANT (2) THE RESPONDE NT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA