ACIT, New Delhi V. Shri Suresh Rajpal, New Delhi

ITA 1282/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61654 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 23-04-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 11-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Section: 143(3); 154

Judgement Text

[1] IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SHRI I. P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.1282/DEL/2011 ASSESSMENT YEAR: 2006- 2007 A.C.I.T., VS. SHRI SURESH RAJPAL, CIRCLE-48(1), A-16/9, VASANT KUNJ, NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. K. MISHRA, SR. D. R. RESPONDENT BY : NONE ORDER PER I. P. BANSAL, JUDICIAL MEMBER THE APPEAL IS FILED BY THE REVENUE. IT IS DIRECT ED AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 28/12/2010 FOR ASSESSMENT YEAR 2006-2007. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOWING GROUNDS : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN: (I) DELETING THE PENALTY AMOUNTING TO RS.9,96,936/- RIGHTLY IMPOSED BY THE ASSESSING OFFICER U/S 271(I)(C) WHEN THE ASSESSEE FAILED TO DECLARE THE SHORT TERM CAPITAL G AIN AMOUNTING TO RS.88,55,336/- IN THE RETURN OF INCOME ; (II) HOLDING THAT ERRORS IN THE RETURN WERE INADVER TENT AND COMMITTED BY AN EXPERT ON WHICH THE ASSESSEE PLACED RELIANCE WITHOUT CONSIDERING THE FACT IT WAS THE RE SPONSIBILITY OF THE ASSESSEE TO INFORM HIS TAX CONSULTANT ABOUT HIS TRANSACTIONS AND SINCE A SUBSTANTIAL AMOUNT OF TDS AMOUNTING TO RS.10,41,338/- WAS PAID, THE OMISSION BY THE ASSESSEE CANNOT BE HELD AS INADVERTENT. [2] 2. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE RETU RN OF INCOME WAS FILED BY THE ASSESSEE ON 10 TH OCTOBER 2006 DECLARING TOTAL INCOME OF RS.16,24,41 0/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ACCORD ING TO THE ASSESSEE, THE LEARNED AR OF THE ASSESSEE HAD REALIZED THAT A MIST AKE HAS OCCURRED AND SHORT TERM CAPITAL GAIN DERIVED BY SWITCH IN AND SWITC H OUT OPERATIONS CONDUCTED BY ABN AMRO BANK WERE NOT INCLUDED AND TDS DEDUCTED RELATING THERETO AMOUNTING TO RS.10,39,148/- WAS ALSO NOT CONSIDERED FOR SET OFF AGAINST THE TAX PAID. IN RESPONSE TO QUESTION NO. 14, IT WAS VOLUN TARILY SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD BOUGHT AN D SOLD SHARES THROUGH ITS BROKERS, INTER ALIA, INCLUDING ABN AMRO BANK, THE D ETAIL OF WHICH WAS FILED AS ANNEXURE-3. IN REPLY TO QUESTION NO. 15, THE ASSES SEE SUBMITTED THE WORKING OF SHORT TERM CAPITAL GAIN ON SALE OF MUTUAL FUNDS AS PER ANNEXURE-4 AND IT WAS SUBMITTED THAT THE ASSESSEE HAD INADVERTENTLY NOT R EFLECTED THE SHORT TERM CAPITAL GAIN ON THE REDEMPTION OF MUTUAL FUND UNIT S AMOUNTING TO RS.1,40,07,781/- AND ALSO THE TDS ON THE SAME AT RS .10,41,338/- AND ASSESSEE OFFERED THE SAID AMOUNT FOR TAXATION AND PRAYED FOR ALLOWING THE CREDIT OF TDS TO THE ASSESSEE. IT IS IN THESE CIRCUMSTANCES A SUM O F RS.1,40,07,781/- WAS ADDED BY THE ASSESSING OFFICER TO THE INCOME OF THE ASSES SEE VIDE AFOREMENTIONED ORDER DATED 30/12/2008 PASSED U/S 143(3) OF THE ACT . A FURTHER SUM OF RS.30,000/- WAS ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF STT BEING GROSSED UP ON ESTIMATE BASIS AND IN THIS MANNER THE INCOME WAS COMPUTED AT RS.3,02,81,880/-. SUBSEQUENT TO THE AFOREMENTIONED ORDER, APPLICATION U/S 154 WAS FILED WHICH WAS DECIDED ON 09/06/2009 IN WHICH THE TOTAL INCOME DETERMINED [3] AT RS.3,02,81,880/- WAS REDETERMINED AT RS.2,51,29, 435/- AS IT WAS FOUND THAT OUT OF AFOREMENTIONED ADDITION OF RS.1,40,07,781/- AN AMOUNT OF RS.51,52,445/- REPRESENTED LONG TERM CAPITAL GAIN ON WHICH STT WAS PAID AND THUS THE SAID AMOUNT WAS REDUCED FROM THE ASSESSED INCOME. THUS, THE REMAINING AMOUNT OF SHORT TERM CAPITAL GAIN WHICH WAS TO BE ADDED TO T HE INCOME OF THE ASSESSEE REMAINED AT RS.88,55,336/- WHICH HAS BEEN FINALLY A DDED TO THE INCOME OF THE ASSESSEE ON WHICH THE IMPUGNED PENALTY HAS BEEN LEV IED AT A SUM OF RS.9,96,940/-. 3. BEFORE LEARNED CIT(A) IT WAS THE CASE OF THE ASS ESSEE THAT IT WAS ONLY AN INADVERTENT MISTAKE VIDE WHICH THE AFOREMENTIONED A MOUNT WAS NOT INCLUDED IN THE INCOME OF THE ASSESSEE. IT WAS SUBMITTED THAT IF THE CREDIT OF TDS, WHICH WAS NOT CLAIMED BY THE ASSESSEE, IS GIVEN THEN THERE WA S NO DIFFERENCE IN THE TAX TO BE PAID BY THE ASSESSEE EVEN AFTER ADDITION OF AFOR EMENTIONED AMOUNT OF SHORT TERM CAPITAL GAIN . THE SAID CALCULATION HAS BEEN REPRODUCED IN THE ORDER OF LEARNED CIT(A) AND IT WAS SHOWN THAT TOTAL TAX PAYA BLE BY THE ASSESSEE WAS A SUM OF RS.29,33,708/- AS AGAINST THE TAX DEDUCTED A ND ALREADY PAID OF A SUM OF RS.30,42,367/-. THE ABOVE CALCULATION OF TAX WAS S UBMITTED TO SHOW THE BONAFIDE OF THE ASSESSEE. IT WAS ALSO SUBMITTED TH AT PAYMENT OF RS.7,91,153/- WAS MADE U/S 140A AND THUS THERE WAS NO MALAFIDE IN TENTION ON NOT SHOWING THE SHORT TERM CAPITAL GAIN EARNED ON MUTUAL FUNDS. AC CEPTING ALL THESE SUBMISSIONS OF THE ASSESSEE AND CONSIDERING THAT AS SESSEE IS SENIOR CITIZEN OF MORE THAN 62 YEARS OF AGE, THE LEARNED CIT(A), AFTE R CONSIDERING THE VARIOUS CASE LAWS, HAS DELETED THE PENALTY OF RS.9,96,940/- AND HE HAS RECORDED A FINDING THAT [4] THE ASSESSEE HAD PAID FULL TAX BY FILING THE RETURN . IT IS AGAINST THAT ORDER OF LEARNED CIT(A) THE DEPARTMENT HAS FILED AFOREMENTIO NED GROUNDS. 4. NOTICE OF HEARING WAS SENT TO THE ASSESSEE, HOWE VER, NONE WAS PRESENT ON THE FIXED DATE OF HEARING. THEREFORE, WE PROCEE D TO DECIDE THE APPEAL FILED BY THE REVENUE AFTER HEARING LEARNED D. R. 5. THE LEARNED D.R. AFTER NARRATING THE FACTS VEHEM ENTLY PLEADED THAT THE ASSESSEE DID NOT DISCLOSE THE SHORT TERM CAPITAL GA IN WHICH WAS LIABLE FOR TAXATION. THE CLAIM OF THE ASSESSEE THAT IT WAS IN ADVERTENT MISTAKE HAS NO FOUNDATION AND, THEREFORE, LEARNED CIT(A) HAS WRONG LY DELETED THE CONCEALMENT PENALTY. HE SUBMITTED THAT THE PENALTY LEVIED BY T HE ASSESSING OFFICER SHOULD BE RESTORED AND ORDER OF LEARNED CIT(A) SHOULD BE SET ASIDE. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LEARNED D.R. WE HAVE ALSO CAREFULLY GONE THROUGH THE ASSESSMENT ORDER, P ENALTY ORDER AND THE ORDER PASSED BY LEARNED CIT(A). AT THE ASSESSMENT STAGE ITSELF, THE ASSESSEE HAD POINTED OUT TO THE ASSESSING OFFICER THAT ONLY DUE TO INADVERTENT MISTAKE IT DID NOT DISCLOSE SHORT TERM CAPITAL GAIN . IT IS ALSO A MA TTER OF FACT THAT THE ASSESSEE DID NOT CLAIM TDS ON THE SAID TRANSACTION. THE CLA IM OF TDS ITSELF WOULD HAVE REVEALED ALL THE TRANSACTIONS ENTERED INTO BY THE A SSESSEE THROUGH WHICH THE ASSESSEE HAS EARNED SHORT TERM CAPITAL GAIN . WHEN EVER THE CLAIM OF TDS IS TO BE MADE BY THE ASSESSEE, IT WILL IMMEDIATELY REF LECT THE TRANSACTIONS AND IT CAN BE FOUND OUT FROM THE TDS THAT THE ASSESSEE HAS EAR NED SHORT TERM CAPITAL GAIN WHICH IS LIABLE FOR TAXATION. TDS DEDUCTED ON THE TRANSACTION WAS SUFFICIENT [5] TO MEET THE TAX LIABILITY OF THE ASSESSEE. THUS IT CAN BE SAID THAT THE MISTAKE OF THE ASSESSEE WAS BONAFIDE. MOREOVER, THE ASSESSEE HAS PAID SELF-ASSESSMENT TAX U/S 140A OF RS.7,91,453/-, WHIC H ITSELF SHOWS THAT THERE WAS NO INTENTION OF THE ASSESSEE TO CONCEAL THE EXISTEN CE OF SHORT TERM CAPITAL GAIN AS THE AMOUNT OF TDS ON THE TRANSACTIONS WHICH HAVE EARNED SUCH GAIN ITSELF IS SUFFICIENT TO DISCHARGE THE TAX LIABILITY OF THE AS SESSEE. BOTH THE CALCULATIONS HAVE BEEN REPRODUCED IN THE ORDER OF LEARNED CIT(A) AND MADE BASIS OF CIT(A) TO GIVE RELIEF TO THE ASSESSEE IS THAT THE TAX HAVE BEEN FULLY PAID BY THE ASSESSEE BEFORE THE DUE DATE OF FILING THE RETURN. CONSIDER ING THE ENTIRE FACTS WHICH HAVE BEEN ELABORATELY DISCUSSED IN THE ABOVE PART OF THI S ORDER, WE ARE OF THE OPINION THAT LEARNED CIT(A) HAS RIGHTLY DELETED THE PENALTY . IT IS NOT A CASE OF CONCEALMENT. IT IS ONLY A CASE OF INADVERTENT MIST AKE ON THE PART OF THE ASSESSEE WHICH CANNOT BE DESCRIBED AS CONCEALMENT ACT OF THE ASSESSEE. THEREFORE, WE DECLINE TO INTERFERE WITH THE FINDINGS REACHED BY L EARNED CIT(A). 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 27/04/2012 ) SD/. SD/. ( SHAMIM YAHYA ) ( I. P. BANSAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:27/04/2012 *SINGH 2304 COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. D.R. ASSISTANT REGISTRAR