Sri Girish S. Dharod, Hyderabad V. ACIT,C-1(2),Hyd., Hyderabad

ITA 1422/HYD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74642 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 30-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHILPA MANIYAR
• Keywords: Difference of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO.1422/HYD/2013 : ASSESSMENT YEAR 2005 - 06 SHRI GIRISH S.DHAROD, HYDERABAD (PAN ABAPD 1756 B ) V/S. ASSTT. COMMISSIONER OF INCOME - TAX CIRCLE1(2), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. SHILPA MANIYAR RESPONDENTS BY : SHRI JEEVAN LAL LAVIDIYA, DR DATE OF HEARING 2 6 .0 2 .201 4 DATE OF PRONOUNCEMENT 2 6 .0 2 .201 4 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME - TAX(APPEALS) II, HYDERABAD DATED 1.8.2013 CONFIRMING PENALTY OF RS.10,28,091 IMPOSED BY THE ASSESSING OFFICER UNDER S.271(1)(C) OF THE ACT, FOR THE ASSESSMENT YEAR 2005 - 06. 2. FACTS OF THE CASE IN BRIEF ARE THAT ASSESSEE IS AN INDIVIDUAL WORKING AS A JOINT MANAGING DIRECTOR IN M/S. DEEPAK TRANSPORT AGENCY. ASSESSEE FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005 - 06 DISCLOSING AN INCOME OF RS.2,00,260. THE ASSESSMENT WAS REOPENED AND DURING THE RE - ASSESSMENT PROCEEDINGS, ASSESSING OFFICER NOTICED THAT THE ASSESSEE SOLD HOUSE PROPERTY OF WHICH HE WAS A CO - OWNER HAVING 20% SH ARE. THE TOTAL PROCEEDS REALISED ON THE PROPERTY WAS RS.1,67,44,140 AND DURING THE ASSESSMENT YEAR 2004 - 05, THE ASSESSEE ALONG WITH OTHER CO - OWNERS PURCHASED A HOUSE PROPERTY IN ROAD NO.12 BANJARA HILLS, HYDERABAD AND CLAIMED EXEMPTION OF RS.31,41,007 UND ER S.54 OF THE INCOME - TAX ACT. THE ASSESSEES SHARE IN THE PROPERTY WORKED OUT TO RS.32,50,000. SUBSEQUENTLY, THE PROPERTY WHICH WAS PURCHASED AT ROAD ITA NO . 1 422 / HYD/ 2013 SHRI GIRISH S. DHAROD, HYDERABAD 2 NO.12 BANJARA HILLS WAS SOLD AND THE ASSESSEE ALONG WITH OTHER CO - OWNERS PURCHASED PROPERTY AT JUBILEE HILLS, HYDERABAD AND THE SECOND HOUSE PURCHASED WAS CLAIMED TO BE WITHIN THE SPECIFIED TIME LIMIT OF 2 YEARS FOR INVESTMENT OF CAPITAL GAINS UNDER S.54 OF THE INCOME - TAX ACT. HOWEVER, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE UNDER S.54 DU RING THE ASSESSMENT YEAR 2005 - 06, HOLDING THAT THE ASSESSEE SOLD THE HOUSE PROPERTY WITHIN THREE YEARS OF PURCHASE, AND THE ASSESSING OFFICER RAISED DEMAND FOR PAYMENT OF TAXES ON THE SHORT TERM CAPITAL GAINS. ON APPEAL, THE CIT(A) AS WELL AS THE TRIBUNAL CONFIRMED THE ASSESSMENT , THUS, MADE BY THE ASSESSING OFFICER. 3. WHILE THUS COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS FOR LEVY OF PENALTY FOR CONCEALMENT UNDER S.271(1)(C) OF THE A C T, AND ULTIMATELY, NOT CONVI NCED WITH THE EXPLANATION OF THE ASSESSEE, IMPOSED THE IMPUGN E D PENALTY OF R S .10,28,091 VIDE ORDER OF PENALTY DATED 30.6.2011. ON FIRST APPEAL, THE CIT(A) CONFIRMED TH E SAID PENALTY BY THE IMPUGNE D ORDER DATED 1.8.2013. HENCE, ASSESSEE IS IN SECOND APPEA L BEFORE US. 4. WE H E ARD BOTH SIDES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES. IT HAS BEEN BROUGHT TO OUR NOTICE , AT THE OUTSET, THAT CORRESPONDING PENALTY OF R S .10,28,091, IMPOSED BY THE ASSESSING OFFICER IN THE CA S E OF CO - OWNER, SHRI NITIN K UMAR SHAH, HAS BEEN CANCELLED BY THE TRIBUNAL, VIDE ITS O R DER DATED 10.9.2013 IN ITA NO.872/HYD/2013 FOR THE ASSESSMENT YEAR 2007 - 08. A COPY OF THE SAID ORDER IS ALSO FURNISHED BEFORE US. WE FIND THAT THE TRIBUNAL IN THE CASE OF THE CO - OWNER, SHRI NITIN KUMAR SHAH, DELETED THE IDENTICAL AMOUNT OF PENALTY IMPOSED, WITH THE F OLLOWING OBSERVATIONS IN PARA 8 OF ITS ORDER DATED 10.9.2013 - 8. W E FIND THAT THERE IS A DIFFERENCE OF OPINION IN THE INTERPRETATION OF LAW AND THE ASSESSEE IS MISCONCEIVED WITH RESPECT TO THE ELIGIBILITY OF EXEMPTION UNDER SECTION 54F. HOW E VER, SINCE ALL THE P A RTICUL A RS HAVE BEEN RE VE ALED BY THE ITA NO . 1 422 / HYD/ 2013 SHRI GIRISH S. DHAROD, HYDERABAD 3 ASSESSEE, TH E RE IS NO CO NCEALMENT OR FUR N ISHIN G OF INACCURATE PAR T I C ULARS FOR THE LEVY OF PENALTY UNDER SECTION 271(1) ( C) TO BE ATTRACTED. FURTHER, WE ALSO OBSERVE THAT THE CRITERIA FOR LEVYING PENALTY I S ON A D IFFER E NT FOOTING AND PENALTY IS NOT TO BE AUTOMATICALLY CONFIRMED ON THE GROUND THAT THE ASSESSEE HAS LO S T HIS CASE ON MERITS.. WITH THE ABOVE REASONING AND RELYING ON THE DECISION OF APEX COURT IN THE CASE OF CIT V/S. RELIANCE PETRO PRODUCTS (322 ITR 158), THE TRIBUNAL HAS CANCELLED THE PENALTY IMPOSED IN THE CASE OF TH AT CO - OWNER. FACTS AND CIRCUMSTANCES OF THE CASE INVOLVED IN THE PRESENT APPEAL OF THE ASSESSEE, ARE BEING IDENTICAL, FOR THE REASONS NOTED ABOVE, IN THIS CASE ALSO, WE FIND THAT THERE WAS NO JUSTIFICATION FOR THE IMPUGNED PENALTY. IMPUGNED PENALTY OF RS. 10,28,091, IS ACCORDINGLY CANCELLED, ALLOWING THE GROUNDS OF THE ASSESSEE IN THIS APPEAL. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED AT THE CONCLUSION OF THE HEARING ON THE APPEALS ON 26.2.2014 . SD/ - SD/ - ( CHANDRA POOJARI ) ( ASHA VIJAYARAGHAVAN ) ACCOUNTANT MEMBER. JUDICIAL MEMBER. DT/ - 26 TH FEBRUARY, 2014 COPY FORWARDED TO: 1. 2. 3. 4. 5. SHRI GIRISH DHAROD, 402, 4 TH FLOOR, MOGHULS COURT, BASHEERBAGH, HYDERABAD 500 001. ASSTT. COMMISSIONER OF INCOME - TAX CIRCLE 1(2), HYDERABAD COMMISSIONER OF INCOME - TAX(APPEALS) II HYDERABAD COMMISSIONER OF INCOME - TAX I, HYDERABAD DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S