GVK JAIPUR EXPRESSWAY PVT. LTD., Jaipur V. ITO, Jaipur

ITA 127/JPR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9719 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH MEENAJCIT DHK
• Assessee Lawyers: MANISH GUPTA
• Keywords: Earning of tax free income

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA- @ ITA NO. 127/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09. M/S. GVK JAIPUR EXPRESSWAY PVT. LTD., 286 KM TOLL PLAZA, AJMER ROAD, NH-8, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AABCG 5541 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH GUPTA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI PRAKASH MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06.03.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 08/03/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT (A)-35, NEW DELHI/CAMP OFFICE AT JAIPUR DATED 14.10.2016 PE RTAINING TO ASSESSMENT YEAR 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GRO UNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT (A) HAS GROSSLY ERRED IN CONFIRMING PENALTY U/S 271(1)( C) OF THE INCOME TAX ACT, 1961 AT RS. 9,00,000/- ARBITRARILY, THUS T HE SAME DESERVES TO BE DELETED. 1.1. THAT THE LD. CIT (A) HAS FURTHER ERRED IN HOLDING T HAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME IN RELATION TO SHORT TERM CAPITAL GAINS BY GROSSLY IGNORING THE FACT THAT ASS ESSEE OFFERED THE SAME FOR TAXATION PRIOR TO ANY ENQUIRY CONDUCTE D BY LD.AO, THUS ASSESSEE HAS DISCLOSED EVERY PARTICULAR OF ITS INCOME AND THEREFORE LEVY OF PENALTY FOR CONCEALING PARTICULAR S OF INCOME AT RS. 9,00,000/- DESERVES TO BE DELETED. 2 ITA NO. 127/JP/2017 M/S. GVK JAIPUR EXPRESSWAY PVT. LTD. 1.2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE L D. CIT (A) HAS GROSSLY ERRED CONFIRMING THE PENALTY LEVIED BY LD. AO RELYING UPON THE CONCLUSION DRAWN IN ASSESSMENT PROCEEDINGS WITHOUT MAKING INDEPENDENT ENQUIRIES IN PENALTY PROCEEDING S WHEN THE PENALTY PROCEEDINGS ARE SEPARATE AND INDEPENDENT PR OCEEDINGS, THUS THE CONSEQUENT ORDER OF LEVY OF PENALTY IS ILL EGAL AND BAD IN LAW. 2. THAT THE APPELLANT CRAVES THE LEAVE TO AMEND/ALTER ALL OR ANY OF THE GROUNDS OF THIS APPEAL ON OR BEFORE THE HEARING OF THE MATTER. 2. AT THE OUTSET, IT IS CONTENDED BY THE LD. COUNSE L FOR THE ASSESSEE THAT IDENTICAL ISSUE IN THE PRECEDING YEAR HAS BEEN DECIDED BY THI S TRIBUNAL IN ITA NO. 140/JP/2013. IT IS CONTENDED THAT THERE IS NO CHAN GE IN THE FACTS AND CIRCUMSTANCES IN THE PRESENT YEAR ALSO. 2.1. ON THE CONTRARY, THE LD. D/R OPPOSED THE SUBMI SSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 2.2. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. WE FIND THAT THE TRIBUNAL IN ITA NO. 140/JP/2013 PERTAINING TO ASSESSMENT YEAR 2 007-08 HAS DELETED THE PENALTY BY OBSERVING AS UNDER :- 3.2. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. IT IS NOT DISPUTED T HAT THE ASSESSEE ITSELF HAS OFFERED FOR TAXATION THE INCOME WHICH WAS CLAIMED TO BE EXEMPT IN THE RETURN OF INCOME. IT IS SUBMITTED THAT IT WAS BECAUSE OF THE ERROR WHICH RESULTED IN CLAIMING THE EXEMPT INCOME. RELIANCE IS PLACED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF PRICE WATERHOU SE COOPERS 3 ITA NO. 127/JP/2017 M/S. GVK JAIPUR EXPRESSWAY PVT. LTD. PVT. LTD. VS. CIT, 348 ITR 306 (SC) WHEREIN THE HON BLE SUPREME COURT HAS HELD THAT THE ASSESSEE SHOULD HAV E BEEN CAREFUL CANNOT BE DOUBTED, BUT THE ABSENCE OF DUE C ARE, IN A CASE SUCH AS THE PRESENT, DOES NOT MEAN THAT THE AS SESSEE IS GUILTY OF EITHER FURNISHING INACCURATE PARTICULARS OR ATTEMPTING TO CONCEAL ITS INCOME. THE HONBLE APEX COURT WAS OF T HE OPINION THAT ON THE PECULIAR FACTS, THE IMPOSITION OF PENAL TY ON THE ASSESSEE IS NOT JUSTIFIED. IN THE PRESENT CASE ALS O DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE REAL IZED THAT OUT OF VARIOUS INVESTMENTS IN MUTUAL FUND SOME WERE REDEEMED AND REINVESTED AND THE DIFFERENCE BETWEEN THE SALE PROCEEDS OF THE UNITS OF THE MUTUAL FUNDS AND THE AMOUNT INVEST ED WAS WRONGLY CONSIDERED AS DIVIDEND INCOME INSTEAD OF SH ORT TERM CAPITAL GAIN. THE LD. CIT (A) HAS REJECTED THE APP EAL OF THE ASSESSEE BY RELYING ON THE JUDGMENT OF THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT VS. KERALA TRANSPORT CO., 134 TAXMAN 320 (KER.). ON THE CONTRARY, LD. COUNSEL HAS RELIE D UPON THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. ESCORTS FINANCE LTD. (SUPRA). IT WAS POINTED OUT B Y THE LD. COUNSEL FOR THE ASSESSEE THAT IN OTHER YEARS ALSO S UCH MISTAKE OCCURRED AND THE DEPARTMENT HAS ACCEPTED THE EXPLAN ATION GIVEN BY THE ASSESSEE AND HAS NOT IMPOSED THE PENAL TY. THIS FACT IS NOT CONTROVERTED BY THE REVENUE. THEREFORE, UNDER THE PECULIARITY OF THE FACTS IN THE PRESENT CASE, RELYI NG ON THE JUDGMENT OF THE HONBLE SUPREME COURT (SUPRA) AND T HE JUDGMENT OF THE HONBLE DELHI HIGH COURT (SUPRA), W E ARE OF THE VIEW THAT THE LD. CIT (A) OUGHT NOT TO HAVE SUSTAIN ED THE PENALTY. THEREFORE, WE SET ASIDE THE ORDER OF LD. C IT (A) AND DIRECT THE AO TO DELETE THE PENALTY. THE GROUND OF THE ASSESSEE IS ALLOWED. 4 ITA NO. 127/JP/2017 M/S. GVK JAIPUR EXPRESSWAY PVT. LTD. THE REVENUE HAS NOT BROUGHT ANY MATERIAL CONTRARY T O THE FACTS AND CIRCUMSTANCES OF THE CASE. THEREFORE, TAKING A CONSISTENT VIEW, WE H EREBY DIRECT THE AO TO DELETE THE PENALTY. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 08/03/201 7. SD/- SD/- ( HKKXPUN] ( DQY HKKJR ) (BHAG CHAND ) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 08/03/2017. D/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S. GVK JAIPUR EXPRESSWAY PVT. LTD., JAIPUR. 2. THE RESPONDENT THE INCOME TAX OFFICER, WARD 7( 2), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 127/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 127/JP/2017 M/S. GVK JAIPUR EXPRESSWAY PVT. LTD.