Shri Kirit Premraj Jain, Ahmedabad V. The ACIT.,Circle-2(1), Baroda

ITA 103/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85550 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-12-2014
• Assessment Year: 1996-1997
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K SINGH SR DR
• Assessee Lawyers: ANIL R SHAH
• Section: 68

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.103/AHD/2011 [ASSTT.YEAR :1996-1997] SHRI KIRTI PREMRAJ JAIN 1, SAMSAMARPAN SOCIETY VASNA ROAD, BARODA. PAN : AAACE 4224 B /VS. ACIT, CIR.2(1) BARODA. ( (( ( -. -. -. -. / APPELLANT) ( (( ( /0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 ) / ASSESSEE BY : SHRI ANIL R. SHAH + 2 3 ) / REVENUE BY : SHRI M.K. SINGH, SR.DR 5 2 &(* / DATE OF HEARING : 10TH DECEMBER, 2014 678 2 &(* / DATE OF PRONOUNCEMENT : 09-01-2015 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSTT.YEAR 1996-97 IS DIRECTED AGAINST THE ORDE R OF THE CIT(A). 2. ONLY GROUND OF THE APPEAL OF THE ASSESSEE IN MER IT IS AS UNDER: 1. THE CIT(A) HAS ERRED IN CONFIRMING LEVY OF PENA LTY OF RS.2,40,000/- WHICH WAS LEVIED BY THE AO FOR BOGUS AND ALLEGED CASH CREDIT. ITA NO.103/AHD/2011 -2- 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS LEVIED ON THE AMOU NTS OF RS.1.95 LAKHS AND RS.4.04 LAKHS RECEIVED FROM SANJAY DHUMAL AND A RVIND NOPANI RESPECTIVELY DURING THE RELEVANT ASSTT.YEAR 1996-97 . HE SUBMITTED THAT THESE TWO AMOUNTS WERE RECEIVED BY THE ASSESSEE FOR SALE OF LAND AS ADVANCE AND FINAL SALE DEED WAS EXECUTED ON 8.8.199 6 RELEVANT TO THE ASSTT.YEAR 1997-98, AND THE ASSESSEE HIMSELF VOLUNT ARILY FILED ITS INCOME- TAX RETURN OF A.Y.1997-98 ON 28.5.1998 AND DECLARED CAPITAL GAIN ON SALE OF THE SAID LAND AT RS.1,84,415/- AFTER CLAIMING CO ST OF ACQUISITION THEREOF. HE SUBMITTED THAT IT WAS BY MISTAKE THAT THE ASSESS EE SHOWN TWO AMOUNTS IN QUESTION AS DEPOSITS IN THE NAME OF THESE TWO PE RSONS AND THE ADDITION MADE UNDER SECTION 68 IN A.Y.1996-97 WAS CONFIRMED UPTO THE LEVEL OF TRIBUNAL, SINCE, THE ASSESSEE COULD NOT REPRESENT I TS CASE DUE TO ADVERSE CIRCUMSTANCES BEYOND ITS CONTROL, AND EX PARTE ORDER OF THE ASSESSMENT AND CIT(A)S ORDER AS WELL AS THAT OF THE TRIBUNAL WAS PASSED. HE SUBMITTED THAT THE ASSESSEE HAS DECLARED CAPITAL GAIN FOR A.Y .1997-98 AND THE SAME AMOUNT HAS BEEN TAXED FOR A.Y.1997-98, AMOUNTING TO DOUBLE TAXATION NOT PERMISSIBLE UNDER THE LAW, AND AT LEAST THE ASSESSE E SHOULD NOT BE PENALIZED UNDER SECTION 271(1)(C) OF THE ACT. 4. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE W AS TOTALLY NON- COOPERATIVE IN ASSESSMENT AND PENALTY PROCEEDINGS, AND ALL THROUGH THE LITIGATION EX PARTE ORDER WAS PASSED BY THE AUTHORITIES. HE SUBMITTED THAT ADDITION HAS ALREADY BEEN CONFIRMED BY THE APPELLAT E AUTHORITY AND THE ASSESSEE NOW CANNOT PLEAD THAT THE SAME HAS BEEN TA XED TWICE UNDER THE HEAD LONG TERM CAPITAL GAIN IN SUBSEQUENT A.Y.1997- 98. HE RELIED ON THE ORDERS OF THE AO AND THE CIT(A). ITA NO.103/AHD/2011 -3- 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT ONLY ISSUE IN THIS APPEAL IS REGARDING PENALTY UNDER SECTION 271(1)(C) OF THE ACT IMPOSED ON THE AMOUNT CREDITED OF RS.1.95 LAKHS OF SANJAY DHUMAL AND RS.4.04 LAKHS OF ARVIND NOPANI. THE ASSESSEE HAS SHOWN THAT IT HAS RECEIVED THE ADV ANCE MONEY FROM THESE PARTIES, BUT THE ACTUAL SALE DEED WAS REGISTERED ON 8.8.1996 I.E. IN SUBSEQUENT YEAR, AND ACCORDINGLY, THE LONG TERM CAP ITAL GAIN AMOUNTING TO RS.1,84,415/- WAS OFFERED FOR TAXATION VOLUNTARILY BY THE ASSESSEE BY FILING THE IT RETURN ON 28.5.1998 FOR THE SUBSEQUENT A.Y.1 997-98. WE FIND THAT MERELY BECAUSE THE ADDITION HAS BEEN CONFIRMED DUE TO NON-COOPERATION OF THE ASSESSEE, FOR SOME REASONS OR OTHER, BY PASSING EX PARTE ASSESSMENT AS WELL AS APPELLATE ORDER, IT CANNOT BE SAID THAT THE ASSESSEE SHOULD BE VISITED WITH PENALTY UNDER SECTION 271(1)(C) OF THE ACT ALS O. IT IS WELL ESTABLISH THAT ASSESSMENT AND PENALTY PROCEEDINGS ARE INDEPEN DENT TO EACH OTHER AND THE ASSESSEE WOULD BE WELL WITHIN ITS RIGHT TO PLEA D ITS CASE DURING THE PENALTY PROCEEDINGS ALSO. SINCE, THE ASSESSEE HAS DECLARED THE SALE PROCEEDS AND RESULTING LONG TERM CAPITAL GAINS IN S UBSEQUENT A.Y.1997-98, WE HOLD THAT THE CHARGE OF CONCEALMENT OF INCOME OR FILING OF INACCURATE PARTICULARS OF INCOME COULD NOT BE ESTABLISHED IN T HIS CASE, AS THE ASSESSEES CONDUCT AND EXPLANATION IN THIS REGARD W AS BONA FIDE , AND ACCORDINGLY, THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS CANCELLED AND THE GROUND NO.1 (ON MERIT) IS ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT