Shri Suresh Chand Bhatia S/o. Ganeshdas Bhatia, Indore V. The I.T.O., Indore

ITA 165/IND/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2738 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 30-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: PRADEEP JAIN
• Keywords: Revised return; Capital Gains
• Section: 271(1)(c); 251

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH-I, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.165/IND/2010 AY: 2006-07 SHRI SURESHCHAND BHATIA INDORE PAN ACFPB-4606E ..APPELLANT V/S. ITO, 2(2), INDORE ..RESPONDENT APPELLANT BY : SHRI PRADEEP JAIN, CA DEPARTMENT BY : SMT. APARNA KARAN, SR. DR ORDER THE ASSESSEE HAS CHALLENGED THE ORDER OF THE LEARNE D COMMISSIONER OF INCOME TAX (APPEALS) DATED 4.1.2010 ON THE GROUND THAT THE LD. FIRST APPELLATE AUTHORITY WRONGLY UPHE LD THE IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT. THOUGH THE ASSESS EE HAS TAKEN AS MANY AS SEVEN GROUNDS OF APPEAL BUT GROUND NOS. 2 T O 7 WERE NOT PRESSED BEING ARGUMENTATIVE IN NATURE. 2. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT WHATEVER SALE CONSIDERATION WAS RECEIVED BY THE ASSESSEE, WA S DULY SHOWN IN THE 2 RETURN AND THE AMOUNT ENHANCED BY THE REGISTRAR IN THE FORM OF STAMP DUTY WAS PAID BY THE PURCHASER WHICH WAS INITIALLY NOT IN THE KNOWLEDGE OF THE ASSESSEE AND THE ASSESSEE HAS NOTHING TO DO WITH THE AMOUNT ENHANCED BY THE OFFICE OF THE REGISTRAR. IT WAS SUB MITTED THAT THERE IS NEITHER ANY CONCEALMENT NOR FURNISHING OF INACCURAT E PARTICULARS. ON THE OTHER HAND, THE LEARNED SR. DR STRONGLY DEFENDED TH E IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE SIGNED THE DOCUMENTS A S THE PROPERTY WAS GOT REGISTERED ON 5.4.2005 AND THE RETURN WAS FILED ON 30.11.2006, THEREFORE, INACCURATE PARTICULARS WERE FILED BY THE ASSESSEE. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON FILE. BRIEF FACTS ARE THAT THE ASSESSE E SOLD A PLOT OF LAND TO TWO DIFFERENT BUYERS BY WAY OF TWO DIFFERENT SALE D EEDS ON THE SALE CONSIDERATION AS MENTIONED IN THE RESPECTIVE SALE D EEDS. HOWEVER, THE OFFICE OF THE REGISTRAR WAS OF THE VIEW THAT THE MA RKET VALUE OF THE PROPERTY IS HIGHER, THEREFORE, HE CHARGED EXTRA STA MP DUTY FROM THE PURCHASER AND THEREAFTER THE REGISTERED SALE DEEDS WERE HANDED OVER TO THE PURCHASER. THE ASSESSEE DECLARED THE SALE CONSI DERATION MENTIONED IN SUCH SALE DEEDS IN ITS RETURN. HOWEVER, THE FAC T REMAINS THAT THE EXTRA STAMP DUTY CHARGED BY THE OFFICE OF THE REGISTRAR W AS NOT A PART OF THE SALE DEED BUT WAS PURELY PAID BY THE PURCHASER. NOW THE QUESTION ARISES WHETHER SUCH ESTIMATION LEADS TO CONCEALMENT OF INC OME AND ALSO 3 WHETHER THE ASSESSEE RECEIVED ANY PART OF SUCH ENHA NCEMENT. THE OBVIOUS REPLY IS NO, FIRSTLY BECAUSE ESTIMATION NOR MALLY DEPENDS UPON THE INDIVIDUAL PERCEPTION OR RATES FIXED BY THE COL LECTOR AND SECONDLY THERE WAS NO EVIDENCE ON RECORD THAT THE ASSESSEE R ECEIVED MORE THAN THE AMOUNT WHICH IS MENTIONED ON THE RESPECTIVE SAL E DEEDS. IN SUCH A SITUATION THE DECISION OF THE HONBLE PUNJAB AND HA RYANA HIGH COURT IN HARI GOPAL SINGH V. CIT; 258 ITR 85 SUPPORTS THE CA SE OF THE ASSESSEE. THE LD. SR. DR, DURING HEARING POINTED OUT THAT WHE N THE ENHANCEMENT OF VALUE WAS BROUGHT TO THE NOTICE OF THE ASSESSEE, HE REVISED HIS RETURN FOR CAPITAL GAINS PURPOSES. I AM NOT IN AGREEMENT W ITH SUCH ARGUMENT BECAUSE EVEN IF FOR THE SAKE OF CAPITAL GAIN PURPOS ES, THE ASSESSEE FILED A REVISED RETURN, IT DOES NOT MEAN THE ASSESSEE CON CEALED ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME AND AS S UCH NO PENALTY IS LEVIABLE. THE RATIO LAID DOWN IN CIT V. SURESHCHAN D MITTAL; 251 ITR 9 (SC) FURTHER SUPPORTS THE CASE OF THE ASSESSEE. IT IS NOT THE CASE THAT THE ENHANCED PAYMENT WAS MADE BY THE ASSESSEE AND T HE SAME WAS NOT DECLARED IN THE RETURN, RATHER AS CLAIMED BY TH E ASSESSEE, IT WAS NOT EVEN IN HIS KNOWLEDGE THAT ANY INCOME WAS ENHANCED AND LATER ON THE ASSESSEE WAS TOLD ABOUT SUCH ENHANCEMENT. EVEN OTHE RWISE, THE ENHANCED AMOUNT OF STAMP DUTY WAS PAID BY THE PURCH ASER SINCE HIS SALE DEED WAS IMPOUNDED BY THE OFFICE OF THE REGIST RAR. FOR IMPOSING PENALTY U/S 271(1)(C) EITHER THERE SHOULD BE CONCEA LMENT OF INCOME OR 4 FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME . IN THE PRESENT APPEAL, THE SALE CONSIDERATION WAS DULY DECLARED BY THE ASSESSEE IN ITS RETURN AND THERE IS NO EVIDENCE THAT EXTRA MONEY WA S TRANSACTED BETWEEN THE SELLER AND THE PURCHASER. SINCE THE EST IMATED ENHANCED STAMP DUTY WAS PAID BY THE PURCHASER AND THE ASSESS EE HAS NOTHING TO DO WITH THE SAME, ITSELF IS NOT A GOOD GROUND FOR I MPOSING PENALTY U/S 271(1)(C) OF THE ACT. CONSEQUENTLY, THE PENALTY OF RS. 92,100/- IMPOSED IS HEREBY CANCELLED. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 .7. 2010. (JOGINDER SINGH) JUDICIAL MEMBER DATED: 12 .7.2010 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD D/-