DCIT, Gurgaon V. Smt. Meena Kumar, Gurgaon

ITA 1617/DEL/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0245 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 28-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA
• Keywords: Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA NO.1617/DEL/2016 ASSESSMENT YEAR: 2011-12 DCIT (E) CIRCLE 2 GURGAON VS SMT. MEENA KUMAR H. NO.2, SOUTH CITY-1, GURGAON PAN NO. ACUPK3342F (APPELLANT) (RESPONDENT) APPELLANT BY MS. ANIMA, SR. DR RESPONDENT BY NONE DATE OF HEARING: 19/07/2021 DATE OF PRONOUNCEMENT: 19/07/2021 ORDER PER N. K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST TH E ORDER OF THE CIT(A)-2, GURGAON DATED 28.01.2016 PERTAINING T O A.Y. 2010-11. 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE RE VENUE IS THAT THE CIT(A) ERRED IN DELETING THE PENALTY LEVIED BY THE AO U/S.271 (1) (C) OF THE ACT. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF SERVICE OF NOTICE WE DECIDED TO PROCEED EXPARTE. THE DR WERE HEARD AT LENGTH. CASE RECORD CAREFULLY PERUSED. 4. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT A SSESSMENT IN THIS CASE WAS COMPLETED ON 31.03.2014 AT AN INCOME OF RS.9,29,05,950/- AGAINST RETURNED INCOME OF RS.1,05 ,56,641/- AFTER MAKING ADDITION OF RS. 20.59 LACS AND RS.8.0 2 CRORES ON ACCOUNT OF SHORT TERM CAPITAL GAIN AND LONG TERM CA PITAL GAIN RESPECTIVELY ON SALE OF URBAN LAND. 5. PENALTY PROCEEDINGS WERE SEPARATELY INITIATED. THE AO WAS OF THE FIRM BELIEF THAT THE CONSIDERATION RECEIVED BY THE ASSESSEE ON TRANSFER OF AGRICULTURAL LAND WERE SUBJECTED TO CAP ITAL GAIN TAX AND AS THE ASSESSEE DID NOT OFFER THE GAINS IN HIS RETU RN OF INCOME, THE AO WAS CONVINCED THAT PENALTY IS LEVIABLE U/S. 271 (1) (C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND ACCORDINGLY LEVIED PENALTY OF RS. 17179745/-. 3 6. MATTER WAS STRONGLY AGITATED BEFORE THE CIT(A). IT WAS STRONGLY CONTENDED THAT WHEN THE ASSESSEE SOLD THE IMPUGNED PIECE OF AGRICULTURAL LAND SAID LAND WAS BEYOND THE DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMITS AND THIS WAS CONFIRMED BY THE TEHSILDAR OF SOHANA. THE CIT(A) CALLED FOR REMAND REPORT FRO M THE AO AND THE AO VIDE HIS REPORT DATED 25.01.2016 SUBMITTED T HAT THE TEHSILDAR, SOHNA HAD CERTIFIED THE CERTIFICATE ISSU ED BY HIS OFFICE WERE AUTHENTICATED. 7. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS THE CIT(A) OBSERVED AS UNDER :- 3.8 I HAVE CAREFULLY CONSIDERED THE APPELLANTS SUBMI SSIONS. THE ADDITIONS IN THIS CASE, ON WHICH PENALTY HAS BEE N LEVIED, WERE MADE ON ACCOUNT OF THE FACT THAT THE LAND SOLD B Y THE APPELLANT WAS WITHIN THE DISTANCE OF 8 KM. FROM THE LOCAL LIMITS OF MUNICIPAL CORPORATION GURGAON. THE APPELLANT HAD CLAIMED THAT THE SAME WAS BEYOND THE DISTANCE OF 8 KM. FROM THE MUNICIPAL LIMIT OF GURGAON AND IN THIS REGARD HAD CONT ENDED THAT THE CLAIM WAS BASED ON DISTANCE CERTIFICATES' I SSUED BY THE LOCAL TEHSILDAR. THE APPELLANT HAS FURTHER CONTENDE D THAT ALTHOUGH, INITIALLY, THE LAND SOLD BY THE APPELLANT W AS BEYOND THE DISTANCE OF 8 KM. FROM THE MUNICIPAL LIMIT OF G URGAON BUT SUBSEQUENTLY, DUE TO CHANGE OF LOCAL LIMITS OF GURGA ON VIDE NOTIFICATIONS DATED 02/06/2008 AND 20/03/2010 BY WH ICH THE MUNICIPAL LIMITS OF GURGAON WERE EXTENDED, THE LAND UNDER 4 REFERENCE CAME WITHIN THE DISTANCE OF 8 KM. FROM TH E MUNICIPAL LIMITS. THE APPELLANT HAS CONTENDED THAT THIS FACT W AS NOT IN THE NOTICE OF THE APPELLANT. THE APPELLANT HAS ALSO FILED CERTIFICATES FROM THE TEHSILDAR, SOHNA WHEREIN IT HA S BEEN MENTIONED THAT PRIOR TO THE REVISED NOTIFICATIONS DA TED 02/06/2008 AND 20/03/2010, THE LANDS UNDER REFERENCE, SOLD BY THE APPELLANT ON WHICH CAPITAL GAINS HAVE BEEN C OMPUTED WERE AT A DISTANCE OF MORE THAN 10 KM FROM THE MUNI CIPAL LIMIT OF GURGAON. COPIES OF THE CONFIRMATIONS FROM THE TE HSILDAR IN THIS REGARD ARE ENCLOSED AS ANNEXURE A-L, A-2 AND A-3. 3.9 IT IS EVIDENT FROM THE FACTS DISCUSSED ABOVE THAT THE LANDS UNDER REFERENCE SOLD BY THE APPELLANT ON WHICH CAPITA L GAINS HAVE BEEN COMPUTED AND ON WHICH PENALTY HAS BEEN LEVI ED WERE SITUATED AT A DISTANCE OF MORE THAN 10 KM FROM THE MUNICIPAL LIMITS OF GURGAON PRIOR TO THE NOTIFICATI ON NO. 18/1/19/2008-3CL DATED 02/06/2008 AND IT WAS ONLY AFT ER THE REVISED NOTIFICATION ISSUED BY THE MUNICIPAL CORP ORATION THAT THE DISTANCE CAME TO BE LESS THAN 8 KM FROM THE MUN ICIPAL LIMITS. THE ISSUE WHETHER THE DISTANCE OF THE AREA Y/HERE THE SUBJECT LAND ON WHICH CAPITAL GAINS ARE TO BE COMPUT ED WAS LOCATED HAS TO BE CONSIDERED ON THE DATE OF CBDT NOTIF ICATION NO. 9447 DATED 06/01/1994 OR ON THE DATE OF SALE IS A DEBATABLE ISSUE. 8. AFTER MAKING THE ABOVE MENTIONED OBSERVATIONS AN D DRAWING SUPPORT FROM SEVERAL JUDICIAL DECISIONS THE CIT(A) DELETED THE PENALTY LEVIED BY THE AO. 5 9. BEFORE US THE DR STRONGLY SUPPORTED THE FINDINGS OF THE AO AND LEAD RELEVANT FINDINGS IN THE ASSESSMENT ORDER AND DREW OUR ATTENTION TO THE NOTIFICATIONS ISSUED SHOWING THAT THE DISTANCE WERE LESS THAN 8KMS. 10. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUT HORITIES BELOW. IT IS AN UNDISPUTED FACT THAT THE DISTANCE OF THE LAND SOLD ON THE DATE OF CBDT NOTIFICATION NO.9447 DATED 06.0 1.1994 WAS MORE THAN 8 KMS. IT IS EQUALLY TRUE THAT ON THE DA TE OF SALE THE SAID DISTANCE WAS LESS THAN 8 KMS. WE ARE OF THE C ONSIDERED VIEW THAT THE CHARGEABILITY OF CAPITAL GAIN TAX UNDER SU CH CIRCUMSTANCES IS A DEBATABLE ISSUE. WE FURTHER FIND THAT THE APPELLANT CLAIM IS WELL SUPPORTED BY THE CERTIFICAT E OF THE TEHSILDAR, SOHNA WHICH WAS ALSO CONFIRMED BY THE AO IN HIS REMAND REPORT. 11. THE HONBLE SUPREME COURT IN THE CASE OF RELIAN CE PETRO CHEMICALS LIMITED THE 322 ITR 158 HAS HELD THAT MER ELY MAKING AN INCORRECT CLAIM WOULD NOT TANTAMOUNT TO FURNISHI NG OF INACCURATE PARTICULARS UNLESS IT WAS ESTABLISHED TH AT APPELLANT HAD ACTED WITH MALAFIDE INTENTION. 6 12. CONSIDERING THE FACTS OF THE CASE IN TOTALITY I N THE LIGHT OF CERTIFICATES OF THE TEHSILDAR, SOHNA WE ARE OF THE CONSIDERED VIEW THAT THE CIT(A) HAS RIGHTLY DELETED THE PENALTY LEV IED U/S. 271 (1) (C) OF THE ACT AND CALLS FOR NO INTERFERENCE. 13. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 14. DECISION ANNOUNCED IN THE OPEN COURT IN THE PR ESENCE OF BOTH THE REPRESENTATIVES ON 19.07.2021. SD/- SD/- ( K.NARASIMHA CHARY ) (N. K. BILLAIYA) JUDICIAL MEMBER A CCOUNTANT MEMBER *NEHA* DATE:-19.07.2021 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITAT NEW DELHI 7 DATE OF DICTATION 19 .07.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19.07.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 19.07.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 19.07.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 19.07.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 19.07.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 19.07.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER