AKBARALI PORBUNDERWALLA, MUMBAI V. ITO WD 1(1)(1), MUMBAI

ITA 1425/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1488 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 31-01-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 28-02-2014
• Court: TRIBUNAL
• Department Lawyers: M V RAJGURU
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) I.T.A. NO.1425/MUM/2014 (ASSESSMENT YEAR: 2006-07) AKBARALI PORBUNDERWALLA 203, MARINE CHAMBERS NEW MARINE LINES MUMBAI-20 VS THE INCOME TAX OFFICER, WD. 1(1)(1), MUMBAI PAN : AFUPP4745G (APPELLANT) (RESPONDENT) APPELLANT BY MS. NEELAM JADHAV RESPONDENT BY SHRI M.V. RAJGURU DATE OF HEARING : 08-12-2016 DATE OF ORDER : 21 -12-2016 O R D E R PER ASHWANI TANEJA, AM: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-1, MUMBAI [HER EINAFTER CALLED CIT(A)] DATED 11-12-2013 PASSED AGAINST THE PENALTY ORDER OF THE AO U/S 271(1)(C) DATED 30-03-2012 FOR A.Y 2006-07 ON THE F OLLOWING GROUND:- 1. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING PENALTY U/S 271(1)(C) ON TAXING OF CAPITAL GAINS U/ S 50C RS.54,37,010/- FOR SALE OF LAND WHICH WAS NOT SOLD BY THE APPELLANT. 2 I.T.A. NO.1425/MUM/2014 2. DURING THE COURSE OF HEARING, IT WAS STATED BY THE LD. COUNSEL THAT PENALTY WAS LEVIED ON THE TAXABILITY OF CAPITAL GAI NS U/S 50C FOR RS.54,37,010/- ON ACCOUNT OF SALE OF LAND WHICH WAS STATED TO BE NOT SOLD BY THE ASSESSEE DURING THE YEAR. IN THE QUANTUM AP PEAL, THE ADDITION MADE BY THE AO HAS BEEN DELETED BY THE TRIBUNAL VID E ITS ORDER DATED 25- 08-2016 IN ITA NO.5721/MUM/2010. 3. PER CONTRA, THE LD. DR DID NOT DISPUTE THE SUBMISSI ONS MADE BY THE ASSESSEE. 4. WE HAVE GONE THROUGH THE ORDER PASSED BY THE LOWER AUTHORITIES AS WELL AS ORDER PASSED BY THE TRIBUNAL IN QUANTUM APP EAL. IT IS NOTED THAT THE TRIBUNAL IN THE QUANTUM APPEAL HAS DELETED THE ADDITION BY OBSERVING AS UNDER:- 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECOR D. THE BONE CONTENTION OF THE ASSESSEE IS THAT THE INCOME FROM THE LAND IS NOT LIABLE TO BE TAXED TWICE. THE ASSESSEE HAS SHOWN TH E LAND WITH M/S SHARP CONSTRUCTIONS CO. WHEREIN THE INCOME FROM THE LAND WAS ASSESSED BY THE ASSESSING OFFICER BY VIRTUE OF ORDER DATED 26.12.2008 FOR THE A.Y.2006-07. THE SAID ORDER WAS ALSO CHALLENGED BEFORE THE CIT(A) WHO CONFIRMED THE ORDE R OF ASSESSING OFFICER BY VIRTUE OF ORDER DATED 05.01.20 10. SUBSEQUENTLY, THE MATTER WENT UP BEFORE THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI WHO ALSO DECIDED THE CAS E IN ITA NO.26631MUMJ2010 FOR A.Y.2006-07. THE SAID ORDER PE RUSED WHICH CLEARLY SPEAKS ABOUT THE ASSESSMENT OF THE IN COME WITH REGARD TO THE LAND BELONGING TO THE M/S. SHARP CONS TRUCTIONS CO. IN QUESTION. THE ASSESSING OFFICER HAS ALSO ASSESSE D THE INCOME UPON THE SAID LAND ON ACCOUNT OF ALIENATION BY THE AKBARALI A. PORBUNDERWALLA TO M/S. LANDLINE BUILDERS PVT. LTD. BY VIRTUE OF DEVELOPMENT DEED REGISTERED ON 23.08.2005 FOR A CON SIDERATION OF RS.15,00,000/- AGAIN BY TREATING THE LAND BELONGING TO AKBARALI A. PORBUNDERWALLA INDIVIDUALLY. NOW IT IS NOT IN DISPU TE THAT THE LAND HAS BEEN ASSESSED TWICE ONE ON THE PART OF M/S. SHA RP 3 I.T.A. NO.1425/MUM/2014 CONSTRUCTION CO. WHICH IS THE PARTNERSHIP FIRM AND THE OTHER ON BEHALF OF THE INDIVIDUAL AKBARALI A. PROBUNDERWALLA . THE LAND WAS USED FOR THE PURPOSE OF THE FIRM. THE SAID CONSIDER ATION TO THE TUNE OF RS.15,00,000/- WAS ASSESSED TWICE ONE ON TH E PART OF THE M/S. SHARP CONSTRUCTION CO. AND AKBARALI A. PORBUND ERWALLA INDIVIDUALLY. IT IS THE CASE OF DOUBLE TAXATION BEC AUSE THE ALIENATION OF THE LAND HAS BEEN ASSESSED TWO TIMES WHICH DOES NOT SEEM JUSTIFIABLE. ACCORDINGLY, THESE ISSUES ARE DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE AND SET ASIDE THE FINDING OF THE CIT(A) ON THE ABOVE SAID ISSUES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY DISMISSED. 5. THUS, WHEN THE QUANTUM ITSELF HAS BEEN DELETED, THE PENALTY LEVIED ON THIS AMOUNT CANNOT SURVIVE ANY MORE. THUS, WE D IRECT THE AO TO DELETE THE PENALTY ALSO. 6. AS A RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CONCL USION OF THE HEARING. SD/- SD/- (MAHAVIR SINGH ) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 21 ST DECEMBER, 2016 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , A-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES