VIJAYKUMAR S. JAIN, MUMBAI V. ASST CIT 13(1), MUMBAI

ITA 1215/MUM/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71133 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 10-09-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 12-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Keywords: Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SRI H.L. KARWA, PRESIDENT, AND SHRI N.K.BILL AIYA, AM ./ I.T.A. NO. 1215/MUM/2013 ( / ASSESSMENT YEAR : 2006-07) MR. VIJAYKUMAR S.JAIN, 90, SARAN STREET, MUMBAI-400003 / VS. ASST. CIT - 13(1), ROOM NO.418, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 !' $ ./ PAN : AABPJ0065H ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) '% ( ) / APPELLANT BY : SHRI DEEPAK TRALSHAWALA &''% ( ) / RESPONDENT BY : SHRI SURENDRA KUMAR ( *$ / DATE OF HEARING : 17-09-2013 +, ( *$ / DATE OF PRONOUNCEMENT : 17-09-2013 -. / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE CIT(A)-24, MUMBAI, DATED 20/12/2012 PERTAINING TO A .Y. 2006-07. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE C IT(A) ERRED IN LAW AND ON THE FACTS OF THE CASE IN SUSTAINING THE PENA LTY U/S 271(1)(C) AT RS.10,25,098/- . THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESSMENT ORDER DATED 26.11.2008 PASSED U/S 143(3) OF THE ACT . 2 ITA NO.1215MUM/2013 SHRI VIJAYKUMAR S.JAIN 3. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PRO CEEDINGS, THE AO OBSERVED THAT THE ASSESSEE HAS TRANSFERRED A PROPER TY WHICH WAS PURCHASED ON 14.05.1991 ALONG WITH TWO CO-OWNERS. T HE AO OBSERVED THAT WHILE COMPUTING THE CAPITAL GAINS, THE ASSESSE E HAS CONSIDERED ONLY 50 PER CENT OF THE MARKET VALUE. THE AO DID NOT AC CEPT THIS CONTENTION OF THE ASSESSEE. THE AO WAS OF THE FIRM BELIEF THAT A SSESSEE WAS 100 PER CENT OWNER AND ON THAT NOTE RECOMPUTED THE CAPITAL GAINS BY MAKING AN ADDITION OF RS.30,45,451/- . THIS ISSUE TRAVELLED UP TO THE TRIBUNAL IN ITA NO.6120/MUM/2009 , THE TRIBUNAL DELETED THE ADD ITIONS MADE BY THE AO. THE PANEL PROCEEDINGS HAVE BEEN INITIATED ON T HE ADDITIONS MADE IN THE ASSESSMENT IN RESPECT OF LONG TERM CAPITAL GAIN ON SALE OF IMMOVABLE PROPERTY AT RS.30,45,451/-. THE CIT(A) CONFIRMED T HE PENALTY HOLDING THAT THE ASSESSEE HAD DECLARED CAPITAL GAINS IN THE REVISED RETURN WHICH WAS AN INVALID RETURN. 4. THE ASSESSEE IS BEFORE US AGAINST THIS FINDING O F THE CIT(A). COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE VERY BA SIS FOR THE LEVY OF PENALTY NO MORE EXISTS AS THE TRIBUNAL HAS DELETED THE ADDITIONS MADE BY THE AO. PER CONTRA THE LD. DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE PENALTY HAS BEEN LEVIED BECAUSE THE ASSESSEE DID NOT DECLARE CAPITAL GAINS IN THE ORIGI NAL RETURN AND THE REVISED RETURN FILED BY THE ASSESSEE IS AN INVALID RETURN. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFULLY PERUSED THE ORDER OF THE LOWER AUTHORITIES. A PERUSAL OF T HE ASSESSMENT ORDER AND THE PENALTY ORDER SHOW THAT THE PENALTY HAS BEEN LE VIED ON THE ADDITIONS MADE IN THE ASSESSMENT PROCEEDINGS. AS THOSE, ADDI TIONS NOW STAND DELETED BY THE ORDER OF THE TRIBUNAL VIDE ITA NO.61 20/MUM/2009. WE DO NOT FIND ANY REASON FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. THE AO IS DIRECTED TO DELETE THE PENALTY SO LEVIED. 3 ITA NO.1215MUM/2013 SHRI VIJAYKUMAR S.JAIN 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 /09/2013 -. ( +, $ /- 17/09/2013 , , ( 0 SD/- (H.L.KARWA) SD/- (N.K.BILLAIYA) HONBLE PRESIDENT ACCOUNTANT MEMBER /MUMBAI; /- /DATED : 17 TH SEPTEMBER, 2013. SHEKHAR. P.S. -. -. -. -. ( (( ( &*12 &*12 &*12 &*12 32 * 32 * 32 * 32 * / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 4 ( ) / THE CIT- , MUMBAI. 4. 4 / CIT(A)- , MUMBAI 5. 250 &* , , / DR, ITAT, MUMBAI 6. 06 7 / GUARD FILE. -. -. -. -. / BY ORDER, '2* &* //TRUE COPY// 8 88 8 / 9 9 9 9 : : : : (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI