Sarika Sanjaykumar Shah, Pune V. Income-tax Officer,

ITA 1271/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9046 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Wrong claim
• Section: 54B; 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E . , , ! ' , # $ BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AW ASTHY, JM . / ITA NO.1271/PUN/2016 #& ' (' / ASSESSMENT YEAR : 2009-10 MRS. SARIKA SANJAYKUMAR SHAH KIRAN AUTO LINES, CINEMA ROAD, AT POST BARAMATI, BARAMATI-413 102. PAN : AGNPS4828B ....... / APPELLANT & / V/S. THE INCOME TAX OFFICER, WARD 5(4), PUNE. / RESPONDENT ASSESSEE BY : NONE REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 27.03.2018 / DATE OF PRONOUNCEMENT : 28.03.2018 ) / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS)-7, PUNE DATED 04.02.2016 FOR THE A SSESSMENT YEAR 2009-10, CONFIRMING LEVY OF PENALTY U/S.271(1)(C) OF THE INCOM E TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2 ITA NO.1271/PUN/2016 A.Y.2009-10 2. THE NOTICE OF APPEAL WAS SENT TO THE ASSESSEE ON 22 .02.2018 THROUGH RPAD FOR 27.03.2018. THE NOTICE WAS DULY SERVED UPON THE ASSESSEE AS IS EVIDENT FROM ACKNOWLEDGEMENT AVAILABLE ON FILE. DESPITE SERVICE OF NOTICE, NEITHER THE ASSESSEE NOR ANY AUTHORIZED REPRESENTATIVE OF ASSESSEE HAS PUT IN APPEARANCE. SINCE NOTICE OF APPEAL HAS BEEN DULY SERVED, WE ARE TAKING UP THIS APPEAL FOR HEARING WITH THE ASSISTANCE OF LD. DR AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE FILED RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 25.07.2009 DECLARING TOTAL INCOME OF RS.13,54,320/-. THE CASE OF ASSESSE E WAS SELECTED FOR SCRUTINY. ACCORDINGLY, STATUTORY NOTICE U/S.143(2) WAS ISSU ED TO THE ASSESSEE ON 20.08.2010. IN THE COURSE OF SCRUTINY ASSESSMENT PROCEED INGS, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS CLAIMED EXEMPTION U/S.54B, 54F AND 54EC OF THE ACT ON CAPITAL GAINS ARISING FROM SALE OF LAND AT BARAMATI. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE WITHDREW HIS CLAIM OF EXEMPTION OF RS.5,22,000/- U/S.54B OF THE ACT. AS REGARDS ASSESSEES CLAIM OF EXEMPTION U/S.54F RS.5,77,454/- FOR INVESTMENT IN HOUSE, THE ASSESSIN G OFFICER DISALLOWED THE CLAIM IN TOTO IN ABSENCE OF ANY COGENT EVIDE NCE. THE CLAIM OF EXEMPTION U/S.54EC RS.100,00,000/- INVESTMENT IN REC BON DS, WAS RESTRICTED TO RS. 50,00,000/- BY THE ASSESSING OFFICER. PENALTY PROCEEDINGS U/S.2 71(1)(C) OF THE ACT WERE ALSO INITIATED FOR FURNISHING INACCURATE PARTICU LARS OF INCOME. THE ASSESSING OFFICER VIDE ORDER DATED 26.03.2014 LEVIED PENALTY OF RS.13,82,140/- U/S.271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 4. AGGRIEVED BY LEVY OF PENALTY U/S.271(1)(C), THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER O F INCOME TAX (APPEALS) DELETED THE PENALTY IN RESPECT OF ASSESSEES CLAIM OF EXEMPTION U/S. 3 ITA NO.1271/PUN/2016 A.Y.2009-10 54EC. HOWEVER, PENALTY IN RESPECT OF CLAIM OF EXEMPTION U/S . 54B AND 54F WERE UPHELD AGAINST WHICH, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. DR.VIVEK AGGARWAL REPRESENTING THE DEPARTMENT VEHEM ENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) AND PRAY ED FOR DISMISSING THE APPEAL OF ASSESSEE. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE LD. DR AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. PENALTY PROCEEDINGS WERE INITIAT ED U/S.271(1)(C) OF THE ACT BY THE ASSESSING OFFICER ON ACCOUNT OF ASSESSEE S WRONG CLAIM OF EXEMPTIONS VIZ. (I) EXEMPTION U/S.54B RS.5,22,000/- FOR PURCHASE OF AGRICULTURAL LAND, (II) EXEMPTION U/S.54F RS.5,77,454/-FOR PURCHASE OF HOUSE AND (III) EXEMPTION U/S.54EC RS.50,00,000/- ON ACCOUNT OF INVESTMENT IN REC BONDS. SINCE THE PENALTY IN RESPECT OF EXEMPTION U/S.54EC HAS BE EN DELETED BY THE COMMISSIONER OF INCOME TAX(APPEALS), THE ASSESSEE IN AP PEAL HAS ASSAILED CONFIRMING LEVY OF PENALTY U/S.271(1)(C) RS.2,49,136/- ON THE RE MAINING TWO DISALLOWANCE. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS C ONFIRMED THE LEVY OF PENALTY BY OBSERVING AS UNDER: 7 . 6 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE & LAW APPARENT FROM RECORDS . THE APPELLANT HAS STATED THAT, SHE HAS PURCHASED SO ME PROPERTIES . THE EVIDENCE IN RESPECT OF SUCH PROPERTIES HAVE NEV ER BEEN FURNISHED BEFORE THE AO EITHER IN ASSESSMENT PROCEEDINGS OR DURING T HE PENALTY PROCEEDINGS. ON WHAT BASIS THIS FIGURES OF RS.5,22,000/- U/S 54B AND RS . 5,77,454/-U/S 54F HAS BEEN TAKEN BY THE APPELLANT HAS NOT BEEN EX PLAINED . THE MISTAKE THERE COULD BE INADVERTENT MISTAKE AS DECIDED BY TH E APE X COURT IN THE CASE OF PRICE WATER (DECISION TO) IN THE EASE OF APPELLA NT WHAT IS MISTAKE AND WHAT IS THE BASIS OF MISTAKE IS NOT KNOWN . HOW INADVERTENT MISTAKE HAS OCCURRED HAS NOT BEEN EXPLAINED BY THE ASSESSEE. TH E CLAIM COULD BE RIGHT OR WRONG . IN CASE THE CLAIM IS RIGHT IT IS TO BE ALLOWED AND IN CASE THE CLAIM IS WRONG IT HAS TO BE DISALLOWED . IN THIS CASE WHAT IS WRONG CLAIM HAS NOT BEEN EXPLAINED BY THE APPELLANT. THE VERY FOUNDATIO N OF THE MISTAKE HAS 4 ITA NO.1271/PUN/2016 A.Y.2009-10 NOT BEEN EXPLAINED BY SHOWING THAT WHAT IS THE PROP ERTY WHOSE VALUE IS OF AMOUNT MENTIONED ABOVE . ONCE SUCH THINGS IS SHOWN TO THE ASSESSING OFFICER THEN ONLY IT COULD BE SAID THAT THERE WAS A GENUINE CLAIM OF THE EXEMPTION ON MISTAKEN BEL I EF . IN OTHER WORDS , THE VERY BAS I S OF FORMATION OF BELIEF BY THE APPELLANT HAS NOT BEEN EXPLAINED . HAD IT BEEN EXPLAINED BY COGENT EVIDENCE ON THE BASIS OF WHICH APPE L LANT CLAIM EXEMPTION I N T HE ORIGINAL RETU R N OF THE INCOME THEN SUCH CLAIM COULD HAVE BEEN EXA MINED WHETHER IT IS R I GHT OR WRONG . I F WRONG CLAIM IS WITHDRAWN BEFORE DETECTION OF THE ASSESSING OFFICER THEN ALSO IT COULD BE SAID TH AT THERE IS BONA-FIDE MISTAKE. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER O F INCOME TAX (APPEALS) IN CONFIRMING OF LEVY OF PENALTY IN RESPECT OF DISALLOWA NCE OF EXEMPTION U/S.54B AND 54F OF THE ACT. ACCORDINGLY, THE IMPUGNED OR DER IS UPHELD AND APPEAL OF THE ASSESSEE IS DISMISSED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON WEDNESDAY, THE 28 TH DAY OF MARCH, 2018 SD/- SD/- ( . / D. KARUNAKARA RAO ) ( ! ' /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; !' / DATED : 28 TH MARCH, 2018. SB ) * +#,-! .!(, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)-7, PUNE. 4. THE CIT-7, PUNE. 5. %&' () , * () , + +,- , / DR, ITAT, B BENCH, PUNE. 6. './ 01 / GUARD FILE. / / TRUE COPY // *2 / BY ORDER, 3 (- / PRIVATE SECRETARY * () , / ITAT, PUNE.