Renubala A.Miglani, Ahmedabad V. The Dy.CIT.,Circle-2, Ahmedabad

ITA 1421/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80499 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 30-10-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 19-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Keywords: Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDI CIAL MEMBER RENUBALA A. MIGLANI 3 RD FLOOR, SHETHIA BUILDING, RELIEF ROAD, AHMEDABAD PAN: ABOPM 4380 J (APPELLANT) VS DCIT, CIRCLE-2, AHMEDABAD (RESPONDENT) SATYAPAL H. MIGLANI, 3 RD FLOOR, SHETHIA BUILDING, RELIEF ROAD, AHMEDABAD PAN: ABQPM 0780 J (APPELLANT) VS DCIT, CIRCLE-2, AHMEDABAD (RESPONDENT) ASHOKKUMAR H. MIGLANI 3 RD FLOOR, SHETHIA BUILDING, RELIEF ROAD, AHMEDABAD PAN: ABSPM 6773 F (APPELLANT) VS DCIT, CIRCLE-2, AHMEDABAD (RESPONDENT) ITA NO. 1421/AHD/2011 ASSESSMENT YEAR 2007-08 ITA NO. 1422/AHD/2011 ASSESSMENT YEAR 2007-08 ITA NO. 1423/AHD/2011 ASSESSMENT YEAR 2007-08 I.T.A NOS.1421, 22, 23 & 1424/AHD/2011 A.Y. 20 07-08 PAGE NO RENUBALAL A MIGLANI AND OTHER ASSESSEES VS. DCIT 2 ASHISH SATYAPAL H. MIGLANI 3 RD FLOOR, SHETHIA BUILDING, RELIEF ROAD, AHMEDABAD PAN: ABDPM 0032 E (APPELLANT) VS DCIT, CIRCLE-2, AHMEDABAD (RESPONDENT) ASSESSEE BY: SMT URVASHI SODHAN, A.R. REVENUE BY: SHRI M.K. SINGH, SR.D.R. DATE OF HEARING : 30-10-2014 DATE OF PRONOUNCEMENT : 14-11-20 14 / ORDER PER : ANIL CHATURVEDI, ACCOUNTANT MEMBER:- THERE ARE THE ASSESSEES APPEALS AGAINST THE ORDER OF LD. CIT(A)- XVI, AHMEDABAD DATED 23-03-2011 FOR A.Y. 2007-08. 2 . BEFORE US, AT THE OUTSET THE LD AR SUBMITTED THAT T HE PRESENT 4 APPEALS THOUGH ARE OF DIFFERENT ASSESSEES BUT ALL ARE FAMIL Y MEMBERS AND THE FACTS AND CIRCUMSTANCES OF ALL THE 4 CASES ARE IDENTICAL EXCE PT FOR THE AMOUNTS AND THEREFORE THE SUBMISSION MADE BY HER IN CASE OF ONE WOULD BE EQUALLY APPLICABLE TO THE OTHER 3 CASES AND THEREFORE ALL THE 4 APPEAL S CAN BE HEARD TOGETHER. WE THEREFORE PROCEED TO DISPOSE OF ALL THE 4 APPEALS B Y A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND THUS PROCEED WITH THE FACTS IN THE CASE OF ASHISH SATYAPAL MIGLANI IN ITA NO 1424/AHD/2011. ITA NO. 1424/AHD/2011 ASSESSMENT YEAR 2007-08 I.T.A NOS.1421, 22, 23 & 1424/AHD/2011 A.Y. 20 07-08 PAGE NO RENUBALAL A MIGLANI AND OTHER ASSESSEES VS. DCIT 3 3. FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. ASSESSEE IS AN INDIVIDUAL WHO FILED HIS RETURN O F INCOME FOR AY 07-08 ON 19.12.2007 DECLARING TOTAL INCOME OF RS 12,02,782/- . THE RETURN OF INCOME WAS LATER REVISED ON 9.3.2009 WHEREIN THE TOTAL INCOME WAS DECLARED AT RS 23,20,134/- WHICH INCLUDED RS 12,25,000/- AS SHORT TERM CAPITAL GAIN ON SALE OF LAND. THE CASE WAS SELECTED FOR SCRUTINY AND THEREA FTER ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DATED 15.12.2009 AND THE TOTA L INCOME WAS DETERMINED AT THE RS 23,20,130/- BEING THE REVISED RETURNED INCOM E. ON THE ISSUE OF THE SHORT TERM CAPITAL GAIN WHICH WAS DECLARED BY THE ASSESSE E IN THE REVISED RETURN OF INCOME, AO WAS OF THE VIEW THAT IT WAS NOT DECLARED ORIGINALLY BY THE ASSESSEE. AO WAS OF THE VIEW THAT ASSESSEE WAS FORCED TO FILE A REVISED RETURN ONLY BECAUSE THE TRANSACTION IN THE PROPERTY HAD BEEN DE TECTED BY THE DEPARTMENT AND BECAUSE THE ASSESSEE WAS QUESTIONED IN THIS REG ARD. HE WAS THEREFORE OF THE VIEW THAT ASSESSEE HAD TRIED TO CONCEAL A PART OF THE TAXABLE INCOME BY FILING INACCURATE PARTICULARS TO THE EXTENT OF RS. 12,25,000/- BEING THE CAPITAL GAINS AND THEREFORE LEVIED PENALTY OF RS. 4,12,335/- U/S 271( 1)(C) VIDE PENALTY ORDER DATED 29.6.2010. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 23. 3. 2011 UPHELD THE PENALTY LEVIED BY THE AO. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS N OW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS: 1. THE ORDER OF THE LD. CIT(A)-XVI, AHMEDABAD IS B AD IN LAW AS MUCH AS IT IS AGAINST THE FACTS OF THE CASE AND THE EVID ENCES ON RECORD. 2. THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY O F RS. 4,12,335/- U/S. 271(1)(C) FORM THE ABOVE ASSESSMENT YEAR. 5. BEFORE US, THE LD AR REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD. CIT(A). SHE FURTHER SUBMITTED THAT THE ASSESSEE I S AN INDIVIDUAL AND NOT MAINTAINING THE BOOKS OF ACCOUNTS. DURING THE YEAR , A PIECE OF LAND THAT WAS OWNED BY THE ASSESSEE JOINTLY WITH OTHER FAMILY MEM BERS AND ONE NON-FAMILY MEMBER WAS SOLD. THE SHORT TERM CAPITAL GAIN ARISIN G FROM THE SALE OF THE LAND I.T.A NOS.1421, 22, 23 & 1424/AHD/2011 A.Y. 20 07-08 PAGE NO RENUBALAL A MIGLANI AND OTHER ASSESSEES VS. DCIT 4 WAS INADVERTENTLY MISSED OUT TO BE SHOWN IN THE RET URN OF INCOME BUT LATER ON REALIZING THE MISTAKE, THE ASSESSEE VOLUNTARILY FIL ED THE REVISED RETURN OF INCOME WHEREIN THE SHORT TERM CAPITAL GAIN WAS ALSO INCLUD ED. THE LD AR FURTHER SUBMITTED THAT THE REVISED RETURN WAS FILED BY THE ASSESSEE AND INCOME DECLARED IN THE REVISED RETURN WAS ACCEPTED BY THE AO WITHOU T MAKING ANY ADDITION. WITH RESPECT TO LD. CLT(A)'S OBSERVATION THAT THE ORIGIN AL RETURN WAS NOT FILED WITHIN THE PRESCRIBED TIME AND THEREFORE THE REVISED RETURN WA S NOT VALID. IT WAS SUBMITTED THAT THOUGH THE REVISED RETURN WAS FOUND TO BE INVA LID, THE AO ACCEPTED THE INCOME AS DECLARED IN THE REVISED RETURN AND COMPUT ATION. SHE FURTHER SUBMITTED THAT ASSESSEE HAS NOT FURNISHED ANY INACCURATE PART ICULARS OF INCOME OR HAD FILED INACCURATE PARTICULARS. THE LD AR ALSO PLACED RELIA NCE ON THE DECISION OF DELHI TRIBUNAL IN THE CASE OF ACIT VS ASHOK RAJ NATH (201 3) 33 TAXMANN. COM 538 (DEL) AND THE DECISION IN THE CASE OF SMT SUDHABEN PARIKH (ITA NO 831/A/2011 ORDER DTD 5.8.2014. SHE THEREFORE SUBMITTED THAT TH E PENALTY LEVIED U/S 271(1)(C) BE DELETED. THE LD DR ON THE OTHER HAND TOOK US THR OUGH THE FINDINGS OF AO AND LD. CIT(A) AND SUBMITTED THAT THE ORIGINAL RETURN O F INCOME WAS NOT IN TIME, THE REVISED RETURN OF THE ASSESSEE WAS NOT A VALID RETU RN AND FURTHER THE ASSESSEE HAD DISCLOSED THE CAPITAL GAINS ONLY AFTER IT WAS D ETECTED BY THE REVENUE DEPARTMENT. HE THUS SUPPORTED THE ORDER OF AO AND L D. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE SHORT TERM CAPITA L GAINS EARNED BY THE ASSESSEE ON THE SALE OF LAND WAS NOT DISCLOSED IN THE ORIGIN AL RETURN OF INCOME BUT WAS DECLARED BY THE ASSESSEE IN THE REVISED RETURN OF I NCOME. IT IS ALSO A FACT THAT THE REVISED RETURN THAT WAS FILED BY THE ASSESSEE HAS B EEN ACCEPTED BY THE AO IN TOTO AND NO FURTHER ADDITION HAS BEEN MADE BY HIM. 7. IN THE CASE OF ACIT VS ASHOK RAJ NATH (SUPRA), W HERE THE ASSESSEE HAD DISCLOSED THE ADDITIONAL INCOME TOWARDS THE CAPITAL GAINS IN THE REVISED RETURN OF INCOME AND EVEN THOUGH THE REVISED RETURN WAS FOUND TO BE INVALID, THE PENALTY LEVIED U/S 271(1)(C) LEVIED WAS DELETED BY THE TRIB UNAL BY HOLDING AS UNDER: I.T.A NOS.1421, 22, 23 & 1424/AHD/2011 A.Y. 20 07-08 PAGE NO RENUBALAL A MIGLANI AND OTHER ASSESSEES VS. DCIT 5 HELD THAT MERELY BECAUSE A NOTICE UNDER SECTION 14 3(2) HAD ALREADY BEEN ISSUED AND ASSESSEE FILED REVISED RETURN THEREAFTER , DISCLOSING ADDITIONAL INCOME TOWARDS CAPITAL GAINS, WHICH WAS NOT CORRECT LY SHOWN IN ORIGINAL RETURN, THAT DID NOT TANTAMOUNT TO DETECTION OF CON CEALMENT OF INCOME UNDER SECTION 271(1)(C). THE ASSESSEE VOLUNTARILY D ISCLOSED ADDITIONAL INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND PAID TAX THEREON. EVEN THOUGH THE REVISED RETURN WAS FOUND T O BE INVALID, THE ASSESSING OFFICER ACCEPTED THE INCOME AS DECLARED I N THE REVISED RETURN AND COMPUTATION. THE ASSESSING OFFICER DID NOT BRIN G ANY MATERIAL ON RECORD THAT THE DECLARATION OF INCOME MADE BY THE A SSESSEE IN HIS REVISED RETURN OR HIS EXPLANATION WAS NOT BANA FIDE. IN THE SE CIRCUMSTANCES THERE APPEARED NO BASIS FOR IMPOSITION OF PENALTY ON THE GROUND THAT THE ASSESSEE FURNISHED INACCURATE PARTICULARS OF INCOME . 'THEREFORE, THE COMMISSIONER (APPEALS) WAS JUSTIFIED IN DELETING TH E PENALTY. IT IS WELL SETTLED THAT THE PARAMETERS OF JUDGING T HE JUSTIFICATION FOR ADDITION MADE IN THE ASSESSMENT CASE OF THE ASSESSEE IS DIFFERENT FROM THE PENALTY IMPOSED ON ACCOUNT OF CONCEALMENT OF INCOME OR FILING INACCURA TE PARTICULARS OF INCOME AND THAT CERTAIN DISALLOWANCE/ADDITION COULD LEGALLY BE MADE IN THE ASSESSMENT PROCEEDING ON THE PREPONDERANCE OF PROBABILITIES, B UT NO PENALTY COULD BE IMPOSED U/S 27L(1)(C) OF THE ACT ON THE PREPONDERAN CE OF PROBABILITIES AND REVENUE HAS TO PROVE THAT THE CLAIM BY THE ASSESSEE WAS NOT GENUINE OR WAS INFLATED TO REDUCE ITS TAX LIABILITY. FURTHER, BEFO RE US, NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE EX PLANATIONS AND SUBMISSIONS MADE BY THE ASSESSEE WERE FALSE. BEFORE US, REVENUE HAS ALSO NOT BROUGHT ON RECORD ANY BINDING CONTRARY DECISION IN ITS SUPPORT . CONSIDERING THE TOTALITY OF THE FACTS, AND RELYING ON THE AFORESAID DECISION OF TRI BUNAL, WE ARE OF THE VIEW THAT IN THE PRESENT CASE NO PENALTY U/S 271(1)(C) OF THE AC T IS LEVIABLE AND THEREFORE WE DIRECT ITS DELETION. THUS THIS GROUND OF ASSESSEE I S ALLOWED AND IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NOS 1421,1422,1423/AHD/2011 8. BEFORE US, SINCE BOTH THE PARTIES HAVE ADMITTED THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASES ARE IDENTICAL TO THAT OF ASHISH SATYAPAL H. MIGLANI (ITA NO. 1424/AHD/2011), WE THEREFORE FOR T HE REASONS GIVEN I.T.A NOS.1421, 22, 23 & 1424/AHD/2011 A.Y. 20 07-08 PAGE NO RENUBALAL A MIGLANI AND OTHER ASSESSEES VS. DCIT 6 HEREINABOVE WHILE DISPOSING THE APPEAL IN ITA NO. 1 424/AHD/2011 AND FOR SIMILAR REASONS ALSO ALLOW THE GROUNDS OF THE ASSESSEES IN THE CAPTIONED APPEALS AND THUS THE APPEALS BY THE ASSESSEES ARE ALLOWED. 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 14/11/2014 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,