Smt. Avaniben Dharmeshbhai Patel, Ahmedabad V. The Income Tax Officer, Ward-7(4), Ahmedabad

ITA 1529/AHD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94398 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 28-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMITA HARDASANI
• Assessee Lawyers: A C SHAH AR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER AND SHRI S.S. GODARA JUDICIAL MEMBER ITA. NOS.1528 /AHD/2015 & 1529/AHD/2015 A.Y.2010-11 1.SMT. DARSHANABEN DHARMESHBHAI PATEL, 1 JAWAHARKUNJ SOCIETY, NR. PARADISE PARK, OLD WADAJ, ASHRAM ROAD, AHMEDABAD. PAN:AMHPP 2467 R 2.SMT. AVANIBEN DHARMESHBHAI PATEL, (ADDRESS AS ABOVE) PAN: ANGPP 5335 C VS THE INCOME TAX OFFICER, WARD 7(4), AHMEDABAD. (APPELLANTS) (RESPONDENT) BY APPELLANTS : SHRI A.C. SHAH,A.R. BY RESPONDENT : SMT. AMITA HARDASANI SR.D.R. / DATE OF HEARING : 11/09/2015 / DATE OF PRONOUNCEMENT: 18/09/2015 / O R D E R PER SHRI S.S. GODARA, JUDICIAL MEMBER THESE TWO APPEALS IN CASE OF DIFFERENT ASSESSEES FOR ASSESSMENT YEAR 2010-11, ARISE FROM THE SEPARATE ORDERS OF TH E CIT(A)-10 AHMEDABAD DATED 29-4-2015, PASSED IN CASE NOS. CIT( A)-10/ITO WARD- 7(4)/323 & 324/13-14 IN PROCEEDINGS U/S. 271(1)(C) OF THE INCOME TAX ACT,1961 IN SHORT THE ACT. ITA NO.1528 & 1529 /AHD/2015 SMT. DARSHANABEN D.PATEL & SMT.AVANI D. PATEL. FOR A.Y. 2010-11 - 2 - 2. BOTH THESE ASSESSEES RAISE IDENTICAL PLEADINGS I N CHALLENGING THE IMPUGNED SECTION 271(1)(C) PENALTIES OF RS. 87,840/ - AND RS.97,916/- RESPECTIVELY; IMPOSED BY THE ASSESSING OFFICER AND AFFIRMED IN THE LOWER APPELLATE ORDER. BOTH PARTIES STATE AT THE OUTSET T HAT THE ISSUE INVOLVE IN THESE TWO APPEALS IS BASED ON IDENTICAL FACTS AND C IRCUMSTANCES. WE ACCORDINGLY TREAT ITA NO.1528/AHD/2015 IN CASE OF D ARSHNABEN DHARMESHBHAI PATEL AS THE LEAD CASE. 3. THIS ASSESSEE FILED HER RETURN ON 31-3-2012 DECL ARING TOTAL INCOME OF RS.11,25,630/-. THE ASSESSING OFFICER NOTICED IN THE COURSE OF PROCEEDINGS THAT SHE HAD SOLD AN IMMOVABLE PROPERTI ES FOR RS.84,00,000/- RESULTING IN SHORT TERM CAPITAL GAIN HE SHARE STATED WAS 1/8 TH I.E. RS.10,50,000/- AND THE ACTUAL SHARE WAS 1/7 TH I.E. RS.12,00,000/-. THE ASSESSEE APPEARS TO HAVE AGREED FOR THE DIFFERE NTIAL SUM OF RS.1,50,000/-. THE CASE FILE REVEALS THAT THE ASSESSEE HAD FURTHE R DECLARED INCOME FROM OTHER SOURCES OF RS,.8,33,333/- AGAINST CANCEL LATION OF BANAKHAT WITH SMT. SUDHABEN. SHE HAD CLAIMED DEDUCTION OF A N AMOUNT OF RS.1,66,666/- @1/3 RD SHARE OUT OF THE ADVANCE PAID OF RS.5 LACS. HOWEVER, NO SUPPORTIVE EVIDENCE WAS PRODUCED BEFORE THE ASSESSING AUTHORITY. THIS RESULTED IN THE SECOND DISALLOWANCE /ADDITION OF RS.1,66,666/- MADE IN ASSESSMENT ORDER DATED 20-2-2 013. THE ASSESSING OFFICER FURTHER INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT ALLEGING CONCEALMENT AND FURNISHING OF INACCURATE P ARTICULARS OF INCOME. THE ASSESSEE DID NOT FILE ANY APPEAL. QUANTUM PROC EEDINGS ACCORDINGLY ATTAINED FINALITY. ITA NO.1528 & 1529 /AHD/2015 SMT. DARSHANABEN D.PATEL & SMT.AVANI D. PATEL. FOR A.Y. 2010-11 - 3 - 4. NOW WE COME TO THE IMPUGNED PENALTY PROCEEDINGS. THE ASSESSEE FILED HER REPLY ON 24-6-2013 PLEADING THE ABOVESAID MISTAKE IN DECLARING SHARE IN CONSIDERATION TO THE ONLY ARITHMETIC. SHE CLARIFIED FOR THE LATTER ADDITION THAT SHE ALONG WITH TWO OTHER PARTIES HAD PAID ADVANCE MONEY OF RS.5 LACS. NO SALE DEED WAS EXECUTED. THIS CULMINA TED IN CIVIL SUIT PROCEEDINGS WHEREIN THE VENDOR IN QUESTION AGREED T O PAY A SUM OF RS.25 LACS. HER SHARE STATED THEREIN WAS RS.8,33,333/- UN DER THE HEAD INCOME FROM OTHER SOURCES THE ASSESSEE FURTHER QUOTED CAS E LAW OF CIT V/S. RELIANCE PETROPRODUCTS PVT. LTD. 332 ITR 158 TO PRA Y FOR DROPPING THE PENALTY PROCEEDINGS. THE ASSESSING OFFICER QUOTED S CRUTINY DELIBERATIONS AND INVOKED SEC. 271(1)(C) OF THE ACT FOR LEVYING T HE IMPUGNED PENALTY OF RS.87,840/-. THE CIT (A) HAS UPHELD THE ASSESSING OFFICERS ACTION. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE C ASE FILE. THE ASSESSEE STATES FOR THE FORMER ADDITION THAT SHE AL ONG WITH 7 OTHER VENDEES HAD PURCHASED THE PROPERTY IN QUESTION. ONE OF THEM SURRENDERED 1/8 TH SHARE THEREIN TO REST SEVEN OF THEM WHO IN TURN SO LD THE PROPERTY IN QUESTION FOR RS.84,00,000/-. IT IS SUBMITTED THAT T HE ASSESSEES SHARE WAS RS.12,00,000/- BEING 1/7 TH BUT THE CONCERNED AUDITOR WENT BY THE ORIGINAL 1/8 TH SHARE FOR THE PURPOSE OF DECLARING CAPITAL GAINS. COMING TO THE LATTER ADDITION, THE ASSESSEE REITERATES THE FACTUAL POSIT ION ALREADY NARRATED ABOVE. SHE ARGUES THAT NEITHER OF THE TWO ADDITIONS AMOUNTS TO CONCEALMENT AND FURNISHING OF INACCURATE PARTICULAR S OF INCOME. THE REVENUE FAILS TO COUNTER THE ABOVESTATED FACTUAL PO SITION. IT SUPPORTS THE LOWER AUTHORITIES ACTION IN IMPOSING THE PENALTY I N QUESTION. THERE IS NO DISPUTE BETWEEN THE PARTIES ON FACTS THAT THE ASSES SEE PURCHASED 1/8 TH ITA NO.1528 & 1529 /AHD/2015 SMT. DARSHANABEN D.PATEL & SMT.AVANI D. PATEL. FOR A.Y. 2010-11 - 4 - SHARE, SOLD 1/7 TH AND FURTHER PAID HER SHARE OF RS.1,66,666/- QUA TH E ADVANCE SUM OF RS.5,00,000/- (SUPRA). WE ARE OF TH E VIEW IN THESE FACTS THAT THE PRESENT IS A CLEAR CUT CASE WHEREIN THE AS SESSEES SHARE IN THE PROPERTY SOLD HAS BEEN MISTAKENLY SHOWN AS 1/8 TH INSTEAD OF 1/7 TH AND THE FACT THAT SHE HERSELF HAD AGREED FOR ADDITION OF R S.1,66,666/- QUA THE ADVANCE SUM CLAIMED AGAINST THE INCOME FROM OTHER S OURCES. WE QUOTE HONBLE APEX COURT DECISION CIT V/S. RELIANCE PETRO PRODUCTS (SUPRA) WHEREIN THEIR LORDSHIPS OBSERVED THAT EACH AND EVER Y ADDITION MADE IN QUANTUM DOES NOT NECESSARILY RESULT IN SECTION 271( 1)(C) OF THE ACT. AND ALSO THAT QUANTUM AND PENALTY ARE SEPARATE PROCEEDI NGS. WE ADOPT THIS REASONING FOR ACCEPTING ASSESSEES ARGUMENTS AND IN REJECTING THOSE OF THE REVENUE FOR DELETING THE IMPUGNED PENALTY OF RS.87, 840/-. ITA 1528/AHD/2015 SUCCEEDS. 6. SAME ORDER TO FOLLOW IN ITA.1529/AHD/2015. 7. BOTH THESE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON THIS DAY, THE 18TH SEPTEMBER, 2015 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD. DATED 18 /09/2015 ITA NO.1528 & 1529 /AHD/2015 SMT. DARSHANABEN D.PATEL & SMT.AVANI D. PATEL. FOR A.Y. 2010-11 - 5 - S.A. PATKI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! '# $ / CONCERNED CIT 4. $ () / THE CIT(A)-III, AHMEDABAD 5. '() **'# , '# , ,-! / DR, ITAT, AHMEDABAD 6. )./ 0 / GUARD FILE. TRUE COPY / BY ORDER, / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION-11.09.2015/15-9-2015 DIRECT ON COMPUTER 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER- 15.09.2015 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S. 11-9-2015 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 18-09-2015. 5. DATE ON WHICH THE FAIR ORDER COMES TO THE SR.P.S. 18-9-2015. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK- 24-9-2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER