Smt. Uma Devi Dadhich, Jaipur V. Income Tax Officer, Ward -6(2), Jaipur

ITA 144/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4692 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDER SINGH DHK
• Assessee Lawyers: RAJEEV SOGNAI
• Keywords: Revised return
• Section: 234B; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ T;IQJ U;K;IHB] T;IQJ T;IQJ U;K;IHB] T;IQJ T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH JESK LH-'KEKZ] YS[KK LNL; DS LE{K BEFORE : SHRI RAMESH C.SHARMA, ACCOUNTA NT MEMBER VK;DJ VIHY LA-@ ITA NO. 144/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SMT. UMA DEVI DADHICH 53, NAGRIK NAGAR, TONK ROAD JAIPUR CUKE VS. THE ITO WARD- 6 (2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AVDPD 4594 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY :SHRI RAJEEV SOGNAI, CA JKTLO DH VKSJ LS@ REVENUE BY: SHRI RAJENDER SINGH, ADDL. CIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30/07/2019 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31 /07/2019 VKNS'K@ ORDER PER RAMESH C. SHARMA, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(A)-2, JAIPUR DATED 24-12-2018 FOR THE ASSESSM ENT YEAR 2009-10, IN THE MATTER OF IMPOSITION OF PENALTY U/S 271(1)(C ) OF THE I.T. ACT, 1961 AMOUNTING TO RS. 1,31,000/-. 2.1 RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PE RUSED. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN ELDERLY AGED WOMA N WHO IS JUST PASSED 5 TH STANDARD AND STATED TO BE NOT UNDERSTANDING THE IN TRICACY OF THE INCOME ITA NO.144/JP/2019 SMT. UMA DEVI DADHICH VS ITO, WARD- 6(2) ,JAIPUR 2 TAX LAWS. SINCE HERE INCOME WAS NOT LIABLE TO TAX, THEREFORE, NO RETURN OF INCOME WAS FILED. SUBSEQUENTLY, IT CAME TO THE NOTI CE OF THE DEPARTMENT THAT THE ASSESSEE HAS SOLD HER IMMOVABLE PROPERTY, THEREFORE, THE CASE WAS REOPENED BY ISSUE OF NOTICE U/S 148 OF THE ACT. WHE N SHE BECAME AWARE OF HER OBLIGATION ON RECEIPT OF NOTICE U/S 148 OF T HE ACT, SHE CONTACTED THE EXPERT AND FILED THE RETURN OF INCOME AND THUS DULY PAID REQUIRED TAX LIABILITY ALONGWITH INTEREST U/S 234A, 234B AND 234 C OF THE ACT. THE LD.AR OF THE ASSESSEE SUBMITTED THAT BEFORE ASSESSE E COULD KNOW THE REASONS OF REOPENING, SHE FILED HER RETURN OF INCOM E AND DISCHARGED HER ENTIRE OBLIGATIONS. THE ASSESSEE WAS UNAWARE OF THE DETECTION BY THE DEPARTMENT AND STILL SHE CAME WITH CLEAN SLATE. THU S THERE WAS NO DELIBERATE CONCEALMENT OF INCOME ON THE PART OF THE ASSESSEE. THE RETURN SO FILED BY THE ASSESSEE BEFORE THE DEPARTMENT WAS ACCEPTED. HOWEVER, THE AO INITIATED THE PROCEEDINGS U/S 271(1)( C) OF THE ACT. PENALTY SO LEVIED BY THE AO WAS CONFIRMED BY THE LD. CIT(A) AG AINST WHICH THE ASSESSEE IS FURTHER APPEAL BEFORE THIS BENCH. 2.2 THE LD.AR OF THE ASSESSEE APPEARING ON BEHALF O F THE ASSESSEE CONTENDED THAT IT IS NOT THE CASE WHERE THE ASSESSE E ORIGINALLY FILED THE SOME RETURN OF INCOME AND CONCEALED SOME PARTICULAR S THEREIN AND, THEREFORE, IN RESPONSE TO NOTICE U/S 148 OF THE ACT , DECLARED HIGHER ITA NO.144/JP/2019 SMT. UMA DEVI DADHICH VS ITO, WARD- 6(2) ,JAIPUR 3 INCOME. HE FURTHER SUBMITTED THAT AS PER PROVISIONS OF SECTION 148 OF THE ACT, THE RETURN FILED IN RESPONSE TO SECTION 148 TA KES THE COLOUR OF RETURN U/S 139(1). THUS IT IS CLEAR THAT THE ASSESSEE IN H ER FIRST RETURN DISCLOSED TRULY AND FAIRLY THE ENTIRE INCOME ON WHICH THE AO HAS NOT MADE ANY FURTHER ADDITION AND THE RETURN SO FILED WAS ACCEPT ED BY THE DEPARTMENT AS IT IS. SINCE THE ASSESSEE VOLUNTARILY RECOGNIZED TH E FACT ABOUT THE UNDISCLOSED INCOME AND ALSO PAID TAXES THEREON ALON GWITH INTEREST AS SOON AS SHE GOT AWARE OF THE SAME BY WAY OF NOTICE U/S 1 48 OF THE ACT, IT IS, THEREFORE, NOT THE CASE THAT ON RECEIPT OF REASONS RECORDED, THE ASSESSEE HAS DISCLOSED HER CAPITAL GAINS. RELIANCE WAS PLACE D ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS SURESH CHANDRA MITTAL [2001] 119 TAXMAN 433. RELIANCE WAS ALSO PLACED ON THE DECISION OF HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE O F CIT VS RAJIV GARG [2008] 175 TAXMAN 184 WHEREIN IT WAS HELD THAT THE ASSESSEE HAS SURRENDERED THE ENTIRE AMOUNT OF SALE PROCEEDS OF S HARES TO BUY PEACE OF MIND AND TO AVOID HAZARDS OF LITIGATION AND ALSO TO SAVE HIMSELF FOR ANY PENAL ACTION. THE AO WAS NOT JUSTIFIED IN LEVYING T HE PENALTY IN RESPECT OF INCOME OFFERED IN THE REVISED RETURN. THE LD.AR ALS O SUBMITTED THAT THERE WAS A DEFECTIVE NOTICE, IN SO FAR, THE NOTICE DATED 8-01-2016 WAS ISSUED FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISH ING OF INACCURATE ITA NO.144/JP/2019 SMT. UMA DEVI DADHICH VS ITO, WARD- 6(2) ,JAIPUR 4 PARTICULARS OF INCOME WHEREAS PENALTY WAS LEVIED FO R CONCEALMENT OF INCOME. BY CITING VARIOUS JUDICIAL PRONOUNCEMENTS, THE LD.AR CONTENDED THAT SINCE THERE WAS A VARIATION IN THE LIMB MENTIO NED IN THE NOTICE ISSUED U/S 274 READ WITH SECTION 271(1) ( C) VIS A VIS PE NALTY ORDER PASSED U/S 271(1)( C) OF THE ACT, INITIATION OF PENALTY WAS VO ID AB INITIO. 2.3 ON THE OTHER HAND, IT WAS CONTENDED BY THE LD. DR THAT ONLY AFTER ISSUE OF NOTICE U/S 148, THE ASSESSEE HAD COME FORW ARD WITH ACTUAL INCOME. UNDER THESE FACTS OF THE CASE, THE AO WAS J USTIFIED IN LEVYING THE PENALTY U/S 271(1)( C) IN RESPECT OF INCOME FIRST T IME OFFERED AFTER ISSUE OF NOTICE U/S 148 OF THE ACT. 2.5 I HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAR EFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT THE ASSESSEE IS AN ILLITERATE LADY WHO IS PASSED 5 TH STANDARD AND DOES NOT UNDERSTAND THE INTRICACY OF INCOME TAX LAWS AND SHE NEVER FILED TH E RETURN OF INCOME DUE TO THE FACT THAT HER INCOME WAS NOT LIABLE TO T AX. DURING THE YEAR UNDER CONSIDERATION, SHE SOLD A HOUSE PROPERTY ON W HICH SHE EARNED CAPITAL GAINS, HOWEVER, THE SAME WAS NOT OFFERED BY FILING ANY RETURN OF INCOME. ONLY AFTER RECEIVING NOTICE U/S 148 AND BEF ORE ANY SERVICE OF REASONS FOR REOPENING, SHE OFFERED INCOME SO EARNED AND ALSO PAID TAXES AND INTEREST THEREON. THE RETURN OF INCOME WAS ACCE PTED BY THE ITA NO.144/JP/2019 SMT. UMA DEVI DADHICH VS ITO, WARD- 6(2) ,JAIPUR 5 DEPARTMENT AS IT IS WITHOUT ANY VARIATION. THUS THE BONA FIDE OF THE ASSESSEE IS NOT IN DOUBT. CONSIDERING THE PROPOSITI ONS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE CIT VS SURESH C HANDRA MITTAL (SUPRA) AS WELL AS HON'BLE PUNJAB & HARYANA HIGH CO URT IN THE CASE OF CIT VS RAJIV GARG (SUPRA), I FIND THAT IT IS NOT A FIT CASE OF LEVYING PENALTY U/S 271(1)(C ) OF THE ACT. ACCORDINGLY , TH E AO IS DIRECTED TO DELETE THE SAME. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/07/201 9. SD/- JESK LH 'KEKZ (RAMESH C. SHARMA) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 31 /07/ 2019 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. UMA DEVI DADHICH, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD-6 (2), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.144/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR