Shri Hiteshbhai Dharamshibhai Devani, Surat V. The Income tax Officer,Ward-9(2), Surat

ITA 1082/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9151 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 18-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEPKR MAJUMDA R
• Assessee Lawyers: M J SHAH
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: S H RI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER SHRI HITESHBHAI DHARAMSHIBHAI DEVANI, 6, DHAMELIYA NAGAR, BEHIND RAILWAY COLONY, VARACHHA ROAD, SURAT PAN: AGVPD0002C (APPELLANT) VS THE ITO, WARD 9(2), SURAT (RESPONDENT) REVENUE BY : MR. PRADEEPKR. MAJUMDA R , SR. D . R. ASSESSEE BY : S H RI M.J. SHAH , A.R. DATE OF HEARING : 16 - 03 - 2 016 DATE OF PRONOUNCEMENT : 22 - 03 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2008 - 09 , AR IS ES FROM ORDER OF THE CIT(A) - V, SURAT DATED 04 - 02 - 2013 IN APPEAL NO. CAS/V/90/2011 - 12 , IN PROCEEDI NGS UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 1082 / A HD/20 13 A SSESSMENT YEAR 200 8 - 09 I.T.A NO. 1082 /AHD/20 13 A.Y. 2008 - 09 PAGE NO SHRI HITESHBHAI DHARAMSHIBHAI DEVANI VS. ITO 2 2. THE ASSESSEE S SOLE SU BSTANTIVE GROUND CHALLENGES SECTION 271(1)(C) PENALTY OF RS. 1,50,915/ - IMPOSED BY THE LOWER AUTHORITIES. IT APPEARS THAT THE SAME HAS ARISEN FROM ADDITION OF RS. 5,03,050/ - MADE BY THE ASSESSING OFFICER BY INVOKING SECTION 50C OF THE ACT AS BASED ON INFO RMATION RECEIVED FROM THE SUB - REGISTRAR, SURAT U/S. 133(6). THERE IS NO DISPUTE THAT THE ASSESSEE HAS ACCEPTED THIS ADDITION AND PAID TAXES THEREUPON. 3. WE COME TO THE IMPUGNED PENALTY PROCEEDINGS. THE ASSESSING OFFICER OBSERVES IN PENALTY ORDER DATE D 24 - 06 - 2011 THAT THE ASSESSEE PURCHASED A PROPERTY I.E. THE CAPITAL ASSET IN QUESTION 30 - 03 - 2008 FOR RS. 34,43,500/ - ALONG WITH THREE OTHER VENDEES. A PART THEREOF MEASURING 402.87 SQ. MT. OUT OF 932.125 MT. WAS SOLD ON THE VERY DAY FOR RS. 5,81,000/ - . THE STAMP AUTHORITIES COMPUTED THE SALE PRICE AS RS. 10,57,533/ - . THIS RESULTED IN ASSESSEE S 1/3 SHARE TO BE RS. 5,03,050/ - AS SHORT TERM CAPITAL GAINS . THE ASSESSEE HAD NOT COMPUTED ANY GAINS ON THE GROUND THAT THE PROPERTY SOLD WAS PURCHASED ON THE S AME DAY. BOTH THE AUTHORITIES BELOW TREAT THE SAME AS AN ACT OF CONCEALMENT OF PARTICULARS OF TAXABLE INCOME U/S. 271(1) (C ) OF THE ACT THEREBY IMPOSING THE IMPUGNED PENALTY OF RS. 1,50,915/ - UNDER CHALLENGE. 4. WE HAVE HEARD BOTH THE PARTIES. RELEVANT FACTS ALREADY STAND NARRATED IN THE PRECEDING PARAGRAPHS. THERE IS NO DISPUTE THAT ASSESSEE HAS PURCHASED/SOLD A PART OF HIS CAPITAL ASSET ON 30 - 03 - 2008 ITSELF. AND THAT THE ASSESSING OFFICER HAS GONE BY SUB - REGISTRAR I.T.A NO. 1082 /AHD/20 13 A.Y. 2008 - 09 PAGE NO SHRI HITESHBHAI DHARAMSHIBHAI DEVANI VS. ITO 3 FOR MAKING IMPUGNED ADDITION AFTER INVOKING SECTION 50C OF THE ACT. BOTH PARTIES ARGUE AGAINST AND IN SUPPORT OF THE IMPUGNED PENALTY. WE FIND THAT A CO - ORDINAT E BENCH OF THE TRIBUNAL IN ITA NO. 508/ AHD/2010 DECIDED ON 22 - 06 - 2012 CHIMANLAL MANILAL PATEL DELETES IDENTICAL PENALTY BASED ON S ECTION 50C ADDITION ON THE GROUND THAT IT S A CASE OF DEEMING PROVISION . THE REVENUE DOES NOT REFER T O ANY EVIDENCE ON RECORD SO AS TO PROVE THAT SALE PRICE OF THE ASSESSEE S CAPITAL ASSET WAS IN ANY WAY ACTUALLY UNDERSTATED. THERE IS FURTHER NO ISSUE TH AT HE HAD PLACED ON RECORD ALL THE RELEVANT PARTICULARS WITH THE RETURN ITSELF WHICH LED TO THE QUANTUM ADDITION IN QUESTION. WE HOLD IN THESE FACTS THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN PENALIZING THE ASSESSEE IN CONSEQUENCE TO SECTION 50C ADDITI ON BASED O N A DEEMING FICTION FOR THE PURPOSE OF DETERMINING THE RELEVANT FAIR MARKET PRICE OF THE ASSET SOLD. THE IMPUGNED PENALTY IS ACCORDINGLY DELETED. 5 . THIS ASSESSEE S APPEAL IS ALLOWED ORDER PR ONOUNCED IN THE OPEN C OURT ON 22 - 03 - 201 6 SD/ - SD/ - ( ANIL CHATURVEDI ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 22 /03 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE I.T.A NO. 1082 /AHD/20 13 A.Y. 2008 - 09 PAGE NO SHRI HITESHBHAI DHARAMSHIBHAI DEVANI VS. ITO 4 2. REVENUE 3. CONCERNED CI T 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,