ACIT, Patiala V. Raja Malvinder Singh, Patiala

ITA 1233/CHANDI/2010

• Counselvise Citation: 123321514 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-01-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 29-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SHREE SHARMA
• Assessee Lawyers: D K GOYAL
• Keywords: Gift
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE, VICE PRESIDENT AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 1233/CHD/2010 ASSESSMENT YEAR: 2005-06 THE ACIT, VS RAJA MALVINDER SINGH, CIRCLE, PATIALA PATIALA PAN NO. AFKPS9801A (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. JAISHREE SHARMA RESPONDENT BY : SHRI D.K.GOYAL DATE OF HEARING : 9.1.2012 DATE OF PRONOUNCEMENT : 9.1.2012 ORDER PER H.L.KARWA, VP THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF CIT(A), PATIALA DATED 31.8.2010 IN CANCELLING THE P ENALTY OF RS. 1,03,09,216/- U/S 271(1) (C) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') FOR THE ASSESSMENT YEAR 2005-06. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED RETURN OF INCOME DECLARING INCOME OF RS. 29,32,944/ - IN WHICH CAPITAL GAIN OF RS. 21,17,913/- AND INCOME FROM OTHER SOURC ES OF RS. 8,15,031/- WERE SHOWN. THE ASSESSING OFFICER COMPLE TED THE 2 ASSESSMENT AT RS. 14,50,19,446/- IN WHICH HE TREA TED THE SALE OF PLOTS BY THE ASSESSEE AS ADVENTURE IN THE NATURE OF TRAD E TO THE EXTENT OF RS. 4,75,97,615/- AND LONG TERM CAPITAL GAINS OF RS. 9, 58,56,800/-. THE ASSESSING OFFICER ALSO MADE AN ADDITION ON ACCOUNT OF UNEXPLAINED GIFT OF RS. 7,50,000/-. BESIDES THIS, THE ASSESSING OFF ICER DID NOT ALLOW RELIEF TO THE ASSESSEE U/S 54EC AND 54F AND ALSO SE T OFF OF BROUGHT FORWARD CAPITAL LOSS OF RS. 20,52,178/- ON THE GROU ND THAT THE INVESTMENTS MADE WERE NOT OUT OF LONG TERM CAPITAL GAINS. 3. ON APPEAL, THE CIT(A) REDUCED THE QUANTUM OF CAP ITAL GAIN AFTER ACCEPTING RATE OF RS. 8,710/- PER SQ. YD. AGAINST T HE RATE OF RS. 15,000/- PER SQ. YD. ADOPTED BY THE ASSESSING OFFICER. THE CIT(A) ALLOWED EXEMPTIONS U/S 54 EC AND 54F AND ALSO BROUGHT FORWA RD LOSSES SHOWN UNDER LTCG. THE CIT(A) ALSO ADOPTED THE VALUE OF R S. 12,000/- PER SQ.YD FOR THE PLOTS ABOVE 100 SQ. YDS. AND RS. 13,5 00/- FOR PLOTS BELOW 100 SQ.YDS AS AGAINST A CONSOLIDATED VALUE OF RS. 21,500/- PER SQ. YD FOR ALL PLOTS TAKEN BY THE ASSESSING OFFICER. THE CIT(A) ALSO DELETED THE ADDITION OF RS. 7,50,000/- MADE ON ACCOUNT OF U NEXPLAINED GIFTS. 4. THE REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ITS ORDER DATED 21.5.2009 IN ITA NO. 838/CHD/2 008-09 SET ASIDE THE ORDER OF CIT(A) AND DIRECTED THAT THE MATTER RE GARDING THE CAPITAL GAIN BE WORKED OUT AGAIN. THE TRIBUNAL ALSO ALLOWE D THE SET OFF OF LOSSES OF RS. 20,52,178/- AND DECIDED THE ISSUE REG ARDING TAXABILITY OF THE PROPERTY SOLD AND ALSO ADDITION OF RS. 7.50 LAC S ON ACCOUNT OF UNEXPLAINED GIFTS. 3 5. THE ASSESSING OFFICER VIDE HIS ORDER DATED 17.8. 2009 IMPOSED A PENALTY OF RS. 1,03,09,216/- BEING 100% OF TAX SOUG HT TO BE EVADED. 6. ON APPEAL, THE CIT(A) CANCELLED THE PENALTY OBSE RVING AS UNDER:- 4.5 AFTER GIVING APPEAL EFFECT TO MY PREDECESSORS ORDER MENTIONED SUPRA AND HON'BLE ITATS ORDER DATED 21.5.2009, THE ASSESSMENT OF THE APPELLANT STANDS AT CAPITAL GAINS SHOWN AT RS. 21,17.913/-, OTHER INCOME OF RS. 7,93,061/-, DEDUCTIONS OF RS. 21,00,970/- AND INCOME RETURNED AT RS. 29,10,974/- WHICH IS EVEN LESSER THAN THE ORIGINAL RETURNED INCOME. AFTER GIVING APPEAL EFFECT THERE IS THUS N O ADDITIONAL INCOME THAT HAS BEEN ASSESSED. CONSEQUENTLY, THERE IS NO SUCH INCOME IN RESPECT OF WHICH THERE HAS BEEN CONCEALMENT OF PARTICULARS OF FURNISHING OF INACCURATE PARTICULARS. THE QUANTUM OF ASSESSMENT HAVING BEEN REDUCED IN APPEAL TO LESS THAN THAT OF THE RETURNED INCOME, THERE CAN THUS BE NO CONCEALMENT IN TERMS OF SECTION 271(1) (C). THE PENALTY IMPOSED OF 100% OF THE ASSESSED INCOME IS, THEREFORE, DELETED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT AFTER GIVING APPEAL EFFECT TO CIT(A) ORDER AND TRIBUNAL ORDER DATED 21. 5.2009, THE ASSESSMENT OF THE ASSESSEE STANDS AT CAPITAL GAIN S HOWN AT RS. 21,17,913/-, OTHER INCOME OF RS. 7,93,021/- DEDUCTI ONS OF RS. 21,00,970/- AND INCOME RETURNED AT RS. 29,10,974/- WHICH IS EVEN LESSER THAN THE ORIGINAL RETURNED INCOME. THUS, IT IS CLEAR THAT AFTER GIVING APPEAL EFFECT, NO ADDITIONAL INCOME HAS BEEN ASSESSED. THE CIT(A) HAS CORRECTLY CONCLUDED THAT THERE IS NO SUC H INCOME IN RESPECT OF WHICH THERE HAS BEEN CONCEALMENT OF PARTICULARS OR FURNISHING OF INACCURATE PARTICULARS. EVEN OTHERWISE ALSO, NO PE NALTY SURVIVES AFTER THE DELETION OF ADDITION MADE. CONSIDERING THE ENT IRE FACTS OF THE 4 PRESENT CASE, WE DO NOT SEE ANY MERIT IN THIS APPEA L OF THE REVENUE AND ACCORDINGLY WE DISMISS THE SAME. 8. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 9 TH DAY OF JANUARY, 2012. SD/- SD/- (MEHAR SINGH) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 9 TH JANUARY, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR