ITO, Chandigarh V. Smt. Neena Chaudhary, Mohali

ITA 1096/CHANDI/2014

• Counselvise Citation: 109621514 RSA 2014
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 10-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: TEJ MOHAN SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 1096/CHD/2014 ASSESSMENT YEAR: 2008-09 THE ITO, VS SMT. NEENA CHAUDHARY WARD 4(1), VILLAGE _ BEHLORPUR, CHANDIGARH. DISTT. MOHALI. PAN: ADJPC2369N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.MITTAL RESPONDENT BY : SHRI TEJ MOHAN SINGH DATE OF HEARING : 13.10.2015 DATE OF PRONOUNCEMENT : 15.10.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDE R OF LD. CIT(APPEALS) CHANDIGARH DATED 10.09.2014 FOR ASSESSMENT YEAR 2008-09, CHALLENGING THE CANCELLATI ON OF PENALTY UNDER SECTION 271( 1)(C) OF THE IT ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT HOUSING SOC IETY NAMED AS DEFENCE SERVICES COOPERATIVE HOUSE BUILDI NG SOCIETY LTD., MOHALI CONSISTING OF 207 MEMBERS WAS FORMED WHICH WAS THE OWNER OF 27.3 ACRES OF LAND IN VILLAG E KANSAL, DISTT. MOHALI. THIS SOCIETY ENTERED INTO T RIPARTITE JOINT AGREEMENT ON 27.04.2007 WITH M/S HASH BUILDER S (P) LTD. CHANDIGARH AND M/S TATA HOUSING DEVELOPMENT COMPANY LTD., MUMBAI BY VIRTUE OF WHICH THE SOCIETY WOULD 2 TRANSFER ITS LAND FOR DEVELOPMENT IN LIEU OF MONETA RY CONSIDERATION AND ALSO CONSIDERATION IN KIND TO THE MEMBERS OF THE SOCIETY. THE ASSESSEE WAS ALSO A ME MBER OF THE SOCIETY OWNING 300 SQ.YDS. LAND. THE TOTAL CONSIDERATION WAS SETTLED AT RS. 48 LACS + ALLOTMEN T OF ONE FLAT OF 1350 SQ.FT. TO THE ASSESSEE OUT OF WHICH, A SSESSEE HAD RECEIVED RS. 19.20 LACS. THE ASSESSEE FILED RE TURN OF INCOME. THE ASSESSING OFFICER, HOWEVER, NOTED THAT AS PER THE AGREEMENT, EACH MEMBERS WERE TO RECEIVE RS. 48 LACS IN CASH AND A FURNISHED FLAT HAVING MARKET VALUE OF RS . 60.75 LACS. THUS, THE TOTAL CONSIDERATION FOR TRANSFER O F FLAT CAME TO RS. 1.08 CR. THE ASSESSING OFFICER, ACCORDINGLY , COMPUTED THE CAPITAL GAIN AT THE HIGHER AMOUNT AND LEVIED THE PENALTY SEPARATELY. 3. THE LD. DR RELIED UPON ORDER OF THE ASSESSING OF FICER. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT ASSESSEE HAS DECLARED CAPITAL GAINS ON THE AMO UNT WHICH WAS RECEIVED BY EXCLUDING THE SALE DEED AND F OR AGREEMENT TO SELL REGARDING WHICH NO TRANSACTIONS W ERE COMPLETED, NO CAPITAL GAIN ARISES. HE HAS SUBMITTE D THAT ON IDENTICAL ISSUE, HON'BLE PUNJAB & HARYANA HIGH C OURT IN THE RECENT DECISION IN THE CASE OF SHRI C.S.ATWAL V S CIT LUDHIANA & ORS. IN BUNCH OF 85 APPEALS DECIDED THE QUANTUM ISSUE AGAINST THE REVENUE IN ITA 200 OF 201 0 DATED 22.07.2015. HE HAS SUBMITTED THAT HON'BLE PU NJAB & HARYANA HIGH COURT FOLLOWING THE SAME DECISION IN THE CASE OF THE ASSESSEE ALSO DELETED THE ADDITION. COP IES OF BOTH THE ORDERS ARE PLACED ON RECORD. HE HAS SUBMI TTED 3 THAT THE IDENTICAL PENALTY MATTER WAS ALSO DECIDED BY ITAT DIVISION BENCH, CHANDIGARH IN ITA 1140/2014 IN THE CASE OF ITO VS BALWINDER SINGH DHILLON, ASSESSMENT YEAR 2008- 09 DATED 03.08.2015 AND DEPARTMENTAL APPEAL HAS BEE N DISMISSED. THE FINDINGS IN PARA 5 OF THIS ORDER AR E REPRODUCED AS UNDER : 5. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. THE FACTS OF THE CASE OF ASSESSEE ARE ADMITTEDLY IDENTICAL AS HAVE BEEN DECIDED BY THE HON'BLE PUNJA B & HARYANA HIGH COURT IN THE CASE OF SHRI C.S. ATWAL V S CIT, LUDHIANA (SUPRA) IN WHICH THE HON'BLE HIGH COU RT DECIDED THE ISSUE OF EXIGIBILITY TO CAPITAL GAIN IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THE CA SE OF THE PRESENT ASSESSEE ALSO, THE ASSESSEE HAS, OF HIS OWN FILED ANOTHER RETURN OF INCOME DISCLOSING ALL THE MATERIAL FACTS RELATING TO TRANSFER OF PLOT AND HAS DISCLOSED CAPITAL GAINS ON THE AMOUNT WHICH WAS ACTUALLY RECEIVED DURING THE YEAR UNDER CONSIDERATI ON. THE DISPUTE WAS LEFT REGARDING TRANSFER OF PLOT AND THE AMOUNT WHICH WAS NOT YET RECEIVED THROUGH THE AGREEMENT TO SELL. THE LD. CIT(APPEALS), THEREFORE , ON PROPER APPRECIATION OF THE FACTS AND MATERIAL ON RE CORD, CORRECTLY HELD THAT IT IS NOT A CASE OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCO ME. THE EXPLANATION OF THE ASSESSEE WAS BONAFIDE AND AF TER PASSING THE IMPUGNED ORDER, WHEN THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI C.S.ATWAL VS CIT, LUDHIANA (SUPRA) HAS DECIDED THE IDENTICAL ISS UE IN FAVOUR OF THE ASSESSEE, WOULD CLEARLY PROVE THAT IT IS NOT A FIT CASE OF LEVY OF THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THEREFORE, WE DO NOT FIND AN Y ERROR IN THE ORDER OF LD. CIT(APPEALS) IN DELETING PENALT Y. THE DEPARTMENTAL APPEAL FAILS AND IS DISMISSED. 4 4. ON CONSIDERATION OF THE RIVAL SUBMISSIONS AND FA CTS OF THE CASE, WE ARE OF THE VIEW ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY ORDER OF ITAT CHANDIGARH BENCH IN T HE CASE OF BALWINDER SINGH DHILLON (SUPRA). FURTHER, WHEN QUANTUM ADDITION HAS ALREADY BEEN DELETED BY HON'BL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF ASSESSEE , PENALTY WOULD NOT SURVIVE. THEREFORE, DEPARTMENTAL APPEAL HAS NO MERIT, THE SAME IS ACCORDINGLY DISMISSED. 5. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAV NESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBE R DATED: 15H OCT., 2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD