Shri Rambhai Kantilal Patel, Kalol V. The Income Tax Officer, Ward-9(4), Ahmedabad

ITA 1201/AHD/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0121 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-10-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ ITA NO. 1201/AHD/2014 / ASSESSMENT YEAR : 2008-09 SHRI RAMBHAI KANTILAL PATEL, B/23, SHRIFAL SOCIETY, B/H.PARMESHWARE PARK, PANCHVATI AREA, DIST:GANDHINGAR, KALOL-382721 PAN : AGCPP 7238 D VS ITO, WARD 9 (4), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI HARDIK VORA, AR REVENUE BY : SHRI PRASOON KABRA, SR DR / DATE OF HEARING : 17/10/2016 / DATE OF PRONOUNCEMENT: 15/11/2016 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER:- THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, AHMEDABAD DATED 05.02.2014 IN CONFIRMING THE PENALTY OF RS.3,35,926/- LEVIED BY T HE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT FOR AY 2008-09. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE FILED HIS RETURN OF INCOME ON 04.05.2009 DECLARING TOTAL INCOME AT RS.1 ,28,020/-. THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTIC E U/S 143(1) OF THE ACT WAS SERVED ON THE APPELLANT AND IN THE NOTICE THE A SSESSING OFFICER STATED THAT THE PROPERTY SOLD WAS A JOINT PROPERTY HELD WI TH ASSESSEES BROTHER SHRI RASIKLAL K. PATEL AND THE ASSESSEES SHARE IN THAT OLD HOUSE PROPERTY WAS SHARE, I.E., IN TERMS OF MONEY RS.20,90,000/- ONLY. THE ASSESSEE HAS WORKED OUT LONG TERM CAPITAL GAIN ON THE SALE OF ABOVE HOU SE PROPERTY AT ITA NO. 1201/AHD/2014 SHRI RAMBHAI KANTILAL PATEL VS. ITO AY : 2008-09 2 RS.9,88,313/-. IN THIS CONNECTION, A SHOW-CAUSE NO TICE WAS SERVED AND ON BEING ASKED THE REASON FOR NOT OFFERING THE CAPITAL GAIN OF RS.9,88,313/-, THE ASSESSEE WAS SILENT ON THIS ISSUE AND COULD NOT EXP LAIN THE REASON FOR THE SAME. THE ASSESSEE HAS NOT DISCLOSED THE PROFIT EA RNED OUT OF SALE OF SALE OF ABOVE PROPERTY IN HIS RETURN OF INCOME. THEREFORE, THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS HIS UNDISCLOSED INCOME AND THE PENALTY PROCEEDINGS U/S 271(1)(C) WERE INITIATED ON THE SAM E FOR FURNISHING INACCURATE PARTICULARS AND CONCEALMENT OF INCOME. 3. FURTHER, PROTECTIVE ADDITION IS ALSO MADE WITH R EFERENCE TO HALF SHARE IN THE PROPERTY OF ASSESSEES BROTHER SHRI RASIKLAL K. PATEL AND THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) AGAINST THE A DDITION MADE BY THE AO IN THE ASSESSMENT ORDER. 4. THE LD. CIT(A) VIDE ITS ORDER DATED 19.10.2011 H AS DELETED THE PROTECTIVE ADDITION IN RESPECT OF ASSESSEES BROTHE R SHRI RASIKLAL K. PATEL OF RS.17,00,213/- AS SHRI RASIKLAL K. PATEL HAS PAID T HE DUE TAXES ALONG WITH INTEREST AND SUBMITTED A COPY OF PAID-UP CHALLAN AN D THE ADDITION MADE IN THE CASE OF THE ASSESSEE OF RS.9,88,313/- WAS REMAI NED CONFIRMED AND SUBSEQUENTLY LEVIED PENALTY OF RS.3,35,926/- U/S 27 1(1)(C) OF THE ACT BEING 100% OF THE TAX SOUGHT TO BE EVADED. AGGRIEVED BY THE AFORESAID PENALTY ORDER, THE ASSESSEE IS NOW IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. WE FIND THAT THE ASSESSING OFFICER, VIDE ORDER DATED 11.09. 2015 U/S 154 OF THE ACT, RECTIFIED A MISTAKE APPARENT FROM RECORD IN CALCULA TION OF DEMAND AND REVISED THE GROSS DEMAND AT RS.3,24,255/- AFTER GIV ING EFFECT TO THE ORDER OF THE CIT(A) DATED 21.11.2011. ACCORDINGLY, THE CALC ULATION OF PENALTY U/S 271(1)(C) WAS ALSO REVISED AT RS.1,97,663/- AS THE PENALTY WAS CALCULATED AT ITA NO. 1201/AHD/2014 SHRI RAMBHAI KANTILAL PATEL VS. ITO AY : 2008-09 3 SPECIAL RATE AS THE INCOME WAS ADDED UNDER LTCG AS AGAINST THE PENALTY OF RS.3,35,926/- EARLIER LEVIED ON NORMAL BUSINESS INC OME. WE ALSO FIND THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE HAS DISCLOSED THE CAPITAL GAIN TAX WORKING AND HAS PAID TAXES BEFORE 31.03.2011. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT LTD, [2010] 322 ITR 158 (SC) HAS HELD THAT IF ANY CLAIM IS MADE IN THE RETURN OF INCOME WHICH IS DIALLOWED BY THE AO, PENALTY U/S 271(1)(C) CANNOT BE IMPOSED FOR DISALLOWANCE OF ANY CLAIM. BESIDES, HONBLE SUPREM E COURT IN THE CASE OF RELIANCE PETRO PRODUCTS LTD HAS ALSO HELD THAT WHEN ALL THE DETAILS WERE FURNISHED ALONG WITH RETURN OF INCOME, MERELY ON AC COUNT OF DISALLOWANCE OR ADDITION CANNOT BE LIABLE FOR PENALTY U/S 271(1) (B) OF THE ACT. WE ARE, THEREFORE, OF THE CONSIDERED VIEW THAT THIS IS NOT A FIT CASE FOR LEVYING PENALTY U/S 271(1)(C) WHICH IS HEREBY DELETED AND T HE ASSESSEES APPEAL IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 15 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (MAHAVIR PRASAD) JUDICIAL MEMBER AHMEDABAD; DATED 15/11/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD