Anuradha Nitin Lodha, Nashik V. Income-tax Officer,

ITA 1450/PUN/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1832 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 16-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Cost of acquisition
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , . . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NO. 1 450 /PN/201 4 / ASSESSMENT YEAR : 20 0 7 - 0 8 ANURADHA NITIN LODHA, CAMP ROAD, BEHIND MAUKTIK CORNER, MALEGAON, DIST. NASHIK - 423203 . / APPELLANT PAN: AA DPL1356M VS. THE INCOME TAX OFFICER (CENTRAL) - 1 , NASHIK . / RESPONDENT / APPELLANT BY : NONE (SUBMISSION DATED 06.05.2016) / RESPONDENT BY : SHRI UMA SHANKAR PRASAD / DATE OF HEARING : 16 . 0 5 .201 6 / DATE OF PRONOUNC EMENT: 18 . 0 5 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - I , NASHIK , DATED 09 . 05 .20 1 4 RELATING TO ASSESSMENT YEAR 20 0 7 - 0 8 AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME - T AX ACT , 1961 (IN SHORT THE ACT) . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1) IN THE FACTS, CIRCUMSTANCES AND POSITION OF LAW, LEARNED COMMISSIONER OF INCOME TAX, APPEALS I, NASHIK ERRED IN CONFIRMING THE LEVY OF PENALTY U/S.271(1)( C) AT RS.42,380/ - . ITA NO. 1 450 /PN/20 1 4 ANURADHA NITIN LODHA 2 2) WITHOUT PREJUDICE TO GROUND NO.1, LEARNED CIT(A) - I, NASHIK ERRED IN NOT REDUCING THE PENALTY TO RS.26,384/ - I.E. 20% OF L.T.C.G. OF RS.1,31,923/ - 3 . THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST LEVY OF PENALTY UNDER SECTION 2 71(1)(C) OF THE ACT AT RS.42,380/ - . 4. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE APPOINTED DATE OF HEARING. HOWEVER, THE ASSESSEE FILED COMPILATION OF PAPER BOOK AND WRITTEN SUBMISSIONS IN THIS REGARD. WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AND AFTER CONSIDERING COMPILATION OF PAPER BOOK FILED BY THE ASSESSEE. 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FURNISHED RETURN OF INCOME ON 31.03.2007 DECLARING TOTAL INCOME A T RS.2,28,320/ - AND AGRICULTURAL INCOME AT RS. 24,860/ - . THE TOTAL INCOME DECLARED BY THE ASSESSEE INCLUDED INCOME AT RS. 24,860/ - . THE TOTAL INCOME DECLARED BY THE ASSESSEE INCLUDED LONG TERM CAPITAL GAINS ON SALE OF PLOT AT MALEGAON AT RS. 88,552/ - . THEREAFTER, SEARCH UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT AT THE PREMI SES OF ASSESSEE ON 21.05.2009 . SUBSEQUENTLY, RETURN OF INCOME IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT WAS FILED DECLARING TOTAL INCOME AT RS. 3,60,240/ - , WHICH INCLUDED INCOME FROM LONG TERM CAPITAL GAINS ON SALE OF PLOT AT RS.2,20,475/ - . THERE WAS DIFFERENCE OF RS.1,31,923/ - IN THE RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT ON ACCOUNT OF INCOME FROM LONG TERM CAPITAL GAINS. THE DIFFERENCE IN CALCULATION OF LONG TERM CAPITAL GAINS WAS ON ACCOUNT OF COST OF ACQUISITION OF PLOT I.E. IN THE ORIGINAL RETURN OF INCOME , SAME WAS TAKEN AT RS. 1,33,300 / - AND IN THE SUBSEQUENT RETURN FILED, IT WAS CONSIDERED AT RS.67,4 6 6/ - . THE BASIS FOR ADOPTING COST OF LAND WAS GOVERNMENT VALUATION OF THE SAID PLOT AS COST OF ACQUISITION AND ENHANCED ITA NO. 1 450 /PN/20 1 4 ANURADHA NITIN LODHA 3 INCOME WAS ASSESSED IN THE HANDS OF ASSESSEE. HOWEVER, DURING THE COURSE OF PENALTY PROCEEDING, IT WAS POINTED OUT THAT THE NET SALE CONSIDERATION ON SALE OF SAID PLOT WAS CORRECTLY SHOWN IN THE ORIGINAL RETURN OF INCOME. HOWEVER, ONLY BECAUSE O F ERROR OF CONSIDERING THE COST OF ACQUISITION AS PER GOVERNMENT VALUATION, THERE WAS DIFFERENCE IN THE COMPUTATION OF INCOME FROM LONG TERM CAPITAL GAINS. THE ASSESSEE EXPLAINED THAT THE SAID PROPERTY WAS PURCHASED BY HER HUSBAND IN THE FINANCIAL YEAR 19 94 - 95 , WHO ACCIDENTALLY DIED IN AN ACCIDENT AT MALPA ON 18.08.1998 WHILE GOING TO MANSAROVAR YATRA. AFTER SEARCH AT THE RESIDENTIAL PREMISES, THE COUNSEL ASKED FOR THE PROOF OF PURCHASE OF SAID PLOT AND THE COPY OF THE SAME WAS OBTAINED FROM REGISTRAR OFF ICE, MALEGAON, AS PER WHICH THE COST OF ACQUISITION OF THE SAID PLOT WAS RS. 67,466/ - . THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND HELD THE ASSESSEE TO HAVE CONCEALED THE PARTICULARS OF INCOME AND LEVIED PENALTY UNDER SECTION 2 71(1)(C) OF THE ACT AT RS. 42,380/ - . 6. THE CIT(A) UPHELD THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT HOLDING THE ASSESSEE TO HAVE INTENTIONALLY FURNISHED INACCURATE PARTICULARS OF INCOME. 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A ). 8. WE FIND THAT THE ASSESSEE HAD IN ORIGINAL RETURN OF INCOME DECLARED THE INCOME FROM LONG TERM CAPITAL GAINS ON SALE OF PLOT IN MALEGAON AND THE SALE CONSIDERATION DECLARED BY THE ASSESSEE WAS RS. 3,55,667/ - . IN THE ORIGINAL RETURN OF INCOME, THE ASS ESSEE HAD DECLARED COST OF ACQUISITION AT RS.1,33,300/ - ON THE BASIS OF GOVERNMENT VALUATION. THEREAFTER, SEARCH UNDER ITA NO. 1 450 /PN/20 1 4 ANURADHA NITIN LODHA 4 SECTION 132 OF THE ACT WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF ASSESSEE ON 21.05.2009. DURING THE COURSE OF SEARCH, APPARENTLY, NO DOCUMENT WAS FOUND AGAINST THE SAID SALE TRANSACTION. HOWEVER, IN THE RETURN OF INCOME FILED PURSUANT TO THE NOTICE ISSUED UNDER SECTION 153A OF THE ACT, THE COST OF ACQUISITION OF THE SAID PLOT WAS DECLARED AT RS. 67,4 6 6/ - BY THE ASSESSEE SUO MOT U . THE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT ORIGINALLY, IT HAD DECLARED THE COST OF ACQUISITION AS PER GOVERNMENT VALUATION AS SHE WAS NOT AWARE OF THE COST OF ACQUISITION OF THE SAID PLOT, WHICH WAS PURCHASED BY HER HUSBAND IN THE FINANCIAL YEAR 1994 - 95 , WHO HAD MET WITH TRAGIC ACCIDENT AND HAD DEMISED ON 18.08.1998 . HOWEVER, AFTER THE SEARCH PROCEEDINGS, SHE HAD OBTAINED A COPY OF PURCHASE DEED OF THE SAID PLOT FROM THE REGISTRAR OFFICE IN MALEGAON, AS PER WHICH THE COST WAS RS.67,4 6 6/ - , WHICH W AS DECLARED AS SUCH IN THE RETURN OF INCOME FILED PURSUANT TO NOTICE UNDER SECTION 153A OF THE ACT. THE CLAIM OF THE ASSESSEE BEFORE US IS THAT IT HAD BONAFIDELY DECLARED ALL THE FACTS OF THE TRANSACTION AND THE REVISION IN THE FIGURES OF COST OF ACQUISIT ION DOES NOT ATTRACT THE LEVY OF PENALTY FOR CONCEALMENT UNDER SECTION 271(1)(C) OF THE ACT. WE FIND MERIT IN THE CLAIM OF ASSESSEE IN THIS REGARD AND IN VIEW OF THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE FIND NO MERIT IN THE ORDERS OF AUT HORITIES BELOW IN HOLDING THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME AND WAS LIABLE TO LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE ASSESSEE HAD BONAFIDELY DECLARED THE COST OF ACQUISITION OF THE SAID PROPERTY ON THE BASIS OF GOVERNMENT VALUATION AND ON HER OWN MOTION HAD REVISED THE COST OF ACQUISITION AFTER OBTAINING THE DOCUMENT FROM THE REGISTRAR OFFICE. NO INCRIMINATING DOCUMENT WAS FOUND AGAINST THE ASSESSEE DURING THE COURSE OF SEARCH ON THE PREMISES OF ASSESSEE. I N THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE DIRECT THE ASSESSING OFFICER TO DELETE PENALTY ITA NO. 1 450 /PN/20 1 4 ANURADHA NITIN LODHA 5 LEVIED UNDER SECTION 271(1)(C) OF THE ACT AT RS. 42,380/ - . THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED. 9 . IN THE RESULT, THE AP PEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 18 TH DAY OF MAY , 201 6 . SD/ - SD/ - ( R.K. PANDA ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 18 TH MAY , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APP ELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I , NASHIK ; 4. / THE CIT (CENTRAL), NA GPUR ; 4. / THE CIT (CENTRAL), NA GPUR ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE