Smt. Sonal Sood, Ludhiana V. ACIT, C-6, Ludhiana

ITA 107/CHANDI/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5671 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 04-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT; SIGH
• Assessee Lawyers: NIKHAL GOYAL
• Keywords: Capital Gains
• Section: 271(1)(c)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B, CHANDIGARH . . , , BEFORE SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 107/CHD/2019 / ASSESSMENT YEAR : 2015-16 SMT. SONAL SOOD, 175, I-BLOCK, SARABHA NAGAR, NEAR KIPPS MARKET, LUDHIANA VS. ! THE ACIT, CIRCLE-6, LUDHIANA ' # ./ PAN NO: BDGPS1584M '$/ APPELLANT &' '$ / RESPONDENT ()*+ /ASSESSEE BY : SH. NIKHAL GOYAL, CA *+ / REVENUE BY : SH. SHRI MANJIT, SIGH, CIT DR , -*) .# /DATE OF HEARING : 20.08.2019 /0 *) .# / DATE OF PRONOUNCEMENT : 30. 09.2019 / ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 27.12.2018 OF THE COMMISSIONER OF INCOM E TAX (APPEALS )- 3, LUDHIANA [HEREINAFTER REFERRED TO AS CIT(A)] AG ITATING THE LEVY OF PENALTY U/S 271 (1)(C) OF THE ACT 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WHO IS AN INDIVIDUAL IS ENGAGED IN THE BUSINESS OF SALE AND P URCHASE OF PROPERTY, SHARES, MUTUAL FUNDS AND BEAUTY PARLOUR. DURING THE YEAR UNDER ITA NO. 107-CHD-2019- SMT. SONAL SOOD, LUDHIANA 2 CONSIDERATION THE INCOME OF THE ASSESSEE WAS ASSESS ED AT RS. 4,02,31,539/- AGAINST THE RETURNED INCOME OF THE R S. 4,02,74,460/-. DURING THE YEAR THE ASSESSEE SOLD SHARES WITH A SAL E CONSIDERATION OF RS. 17,52,000/- WHICH WERE ACQUIRED BY THE ASSESSEE FOR RS. 50,000/- ON 29.6.2007 AND CALCULATED THE TAX ON THE SAID ON THE LONG TERM CAPITAL GAINS AT THE RATE OF 10% WITHOUT TAKING THE BENEF IT OF INDEXATION. HOWEVER, THE ASSESSING OFFICER DURING ASSESSMENT PR OCEEDINGS HELD THAT THE CAPITAL GAINS ON THE UNLISTED SHARES WERE TO BE TAXED 20% AFTER TAKING THE BENEFIT OF INDEXATION. THE ASSESSING OFF ICER HELD THAT THE ASSESSEE HAD WRONGLY PAID LESS TAX AND, THEREFORE, DIRECTED THE ASSESSEE TO PAY THE BALANCE TAX. HE ALSO INITIATED PENALTY P ROCEEDINGS U/S 271 (1)(C) OF THE ACT AND IMPOSED THE IMPUGNED PENALTY FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME . 3. THE LD. CIT(A) CONFIRMED THE PENALTY SO LEVIED B Y THE ASSESSING OFFICER. 4. BEING AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE HAS COME IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, IN THIS C ASE THE ASSESSEE HAS NEITHER CONCEALED THE PARTICULARS OF INCOME NOR FUR NISHED INACCURATE PARTICULARS OF INCOME. HOWEVER, THE ASSESSEE ON TH E CAPITAL GAINS ITA NO. 107-CHD-2019- SMT. SONAL SOOD, LUDHIANA 3 EARNED, MISTAKENLY PAID THE TAX @ 10%, WHEREAS, T HE ASSESSEE WAS REQUIRED TO PAY TAX @ 20%. THE PLEA OF THE ASSESSEE IS THAT IT WAS AN INADVERTENT MISTAKE AND NOT INTENTIONAL MISTAKE. TH E ASSESSEE PAID THE TAX @ 10% UNDER WRONG IMPRESSION THAT IT WAS LIABLE TO PAY SO AT SUCH RATE. THAT THERE WAS NO INTENTION ON THE PART OF T HE ASSESSEE TO CONCEAL ITS INCOME OR FURNISH INACCURATE PARTICULARS OF INC OME OR TO PAY ANY LESS TAX WITH MALAFIDE INTENTION. WE DO NOT FIND THIS CASE TO BE OF CONCEALMENT OF IN COME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE MISTAKE ON THE PART OF THE ASSESSEE IN PAYING THE TAX AT LESSER RATE SE EMS TO BE AN INADVERTENT MISTAKE. THE ASSESSEE IN THIS CASE HAS NOT CONCEAL ED ANY PART OF HER INCOME. THE CASE OF THE ASSESSEE IS, THUS, COVERED BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS RELIANCE PETROPRODUCTS PVT. LTD. 322 ITR 158 HELD AS UNDER : A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME-TAX ACT,1961 SUGGESTS THAT IN ORDER TO B E COVERED BY IT, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY , THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE MEANING OF THE WORD PARTICULARS USED IN SECTION 271(1)(C) WOULD EMBRACE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HEL D GUILTY OF FURNISHING INACCURATE PARTICULARS. IN ORD ER TO EXPOSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISIONS, THE PENALTY PROVISION CANNOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. ITA NO. 107-CHD-2019- SMT. SONAL SOOD, LUDHIANA 4 THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAU SE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, THE LIABILI TY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLI ED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE IS NO QUESTIO N OF INVITING THE PENALTY U/S 271(1)(C). A MERE MAKIN G OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW, BY ITSE LF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULAR S REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 9. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN TH E AFORESAID ORDER OF THE TRIBUNAL, WE DO NOT FIND IT A FIT CASE OF LE VY OF PENALTY U/S 271 (1)(C) OF THE ACT AND THE SAME IS ACCORDINGLY ORDE RED TO BE DELETED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.09.2019. SD/- SD/- ( . . / N.K. SAINI) ( ! / SANJAY GARG) '#$ / VICE PRESIDENT %& / JUDICIAL MEMBER DATED : 30.09.2019 .. 2*&)3454) / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. &' '$ / THE RESPONDENT 3. , 6) / CIT 4. , 6) ( )/ THE CIT(A) 5. 47 &)8 , . 8 , 9:;< / DR, ITAT, CHANDIGARH 6. ;= - / GUARD FILE ITA NO. 107-CHD-2019- SMT. SONAL SOOD, LUDHIANA 5 2 , / BY ORDER, > / ASSISTANT REGISTRAR