Jt. CIT, Range-1, Nashik V. Smt. Shaila Sampat Gavanda, Nashik

ITA 1657/PUN/2013

• Counselvise Citation: 165724514 RSA 2013
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 30-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return; Bonafide mistake

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.1657/PN/2013 (A.Y: 2009-10) JT.CIT, RANGE-1, NASHIK APPELLANT VS. SMT. SHAILA SAMPAT GAVANDE FLAT NO.4, FOURNEST APARTMENT, DSOUZA COLONY, NASHIK 422101 PAN: ANUPG8415E RESPONDENT ASSESSEE BY : NONE DEPARTMENT BY : SHRI RAJE SH DAMOR DATE OF HEARING: 25.08.2014 DATE OF ORDER : 27.08.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-I, NASHIK DA TED 06.06.2013 FOR A.Y. 2009-10 ON THE FOLLOWING GROUND S. 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD.CIT(A)-I, NASHIK WAS JUSTIFIED IN DELE TING THE PENALTY OF RS.20,65,930/- U/S.271(1)(C) OF THE INCO ME TAX ACT, 1961. 2. THE APPELLANT PRAYS THE ORDER OF THE ASSESSING OFFI CER MAY BE RESTORED. 3. THE APPELLANT PRAYS TO ADDUCE SUCH FURTHER EVIDENCE TO SUBSTANTIATE HIS CASE. 4. THE APPELLANT PRAYS LEAVE TO ADD, ALTER, CLARIFY, A MEND AND OR WITHDRAW ANY GROUNDS OF APPEAL AS AND WHEN T HE OCCASION DEMANDS. 2. THE ASSESSEE IS AN INDIVIDUAL STAYING IN TEXAS ( USA). SHE WAS NON RESIDENT DURING THE YEAR UNDER APPEAL. DUR ING THE YEAR 2 ITA NO.1657/PN/13 SMT. SHAILA SAMPAT GAWANDE UNDER APPEAL, SHE SOLD HER CERTAIN PROPERTY AND FIL ED RETURN OF INCOME FOR THE YEAR UNDER APPEAL AND PAID THE TAXES ON CAPITAL GAIN ARISING OUT OF SALE OF PLOTS. HOWEVER, THERE WAS SOME MISTAKE IN CALCULATION OF INDEXED COST OF ACQUISITI ON IN THE SAID RETURN OF INCOME. THE SAID MISTAKE WAS BROUGHT TO THE NOTICE OF THE AUTHORIZED REPRESENTATIVE APPEARING FOR THE ASS ESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE, T HE ASSESSEE FILED THE REVISED RETURN OF INCOME ON 01.09.2010 CO RRECTLY CALCULATING THE CAPITAL GAIN AND PAID THE TAXES THE REON. THE ASSESSMENT WAS COMPLETED AT THE SAME INCOME AS DISC LOSED IN THE REVISED RETURN OF INCOME. THE ASSESSEE HAS NOT FILED APPEAL AGAINST THE QUANTUM ASSESSMENT PASSED U/S.143(3) OF THE ACT. THE ASSESSING OFFICER INITIATED THE PROCEEDINGS U/S .271(1)(C) OF THE ACT AND LEVIED THE PENALTY OF RS.20,65,930/-. 2.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE A UTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF THE ASSESSEE AND HAVING CONSIDERED THE SAME, THE CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF THE REVENUE, INTER ALIA, SUBMITTED THAT T HE CIT(A) WAS NOT JUSTIFIED IN DELETING THE PENALTY OF RS.20,65,9 30/- U/S.271(1)(C) OF THE INCOME TAX ACT, 1961. ACCORDI NGLY, THE ORDER OF CIT(A) BE SET ASIDE AND THAT OF THE ASSESSING OF FICER BE RESTORED. NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF SERVICE, SO, THE MATTER IS BEING DECIDED EXPARTE. 2.2 AFTER TAKEN INTO THE FACTS AND CIRCUMSTANCES OF THE CASE INTO CONSIDERATION, MATERIAL ON RECORD AND ARGUMENTS OF THE LEARNED DEPARTMENTAL REPRESENTATIVE, WE FIND THAT THE BONAF IDE NATURE OF THE ASSESSEE AND HER WILLINGNESS TO COMPLY THE INDI AN TAX LAWS BY PAYING APPROPRIATE CAPITAL GAIN TAX. THE ASSESS EE UNDISPUTEDLY HAS TAKEN ALL NECESSARY STEPS IN HER S HORT SPAN OF STAY IN INDIA TO PAY THE CAPITAL GAINS TAX ON THE S ALE OF PLOTS. SHE HAS APPOINTED APPROVED VALUER TO CARRY OUT THE VALU ATION OF THE 3 ITA NO.1657/PN/13 SMT. SHAILA SAMPAT GAWANDE PLOTS AS ON 01.04.1981 FOR THE PURPOSE OF CALCULATI ON OF CAPITAL GAIN TAX ON SALE OF PLOTS BY HER. SHE HAS ALSO APP OINTED CHARTERED ACCOUNTANT TO CALCULATE THE CAPITAL GAINS TAX AND ALSO PAID THE CAPITAL GAINS TAX IMMEDIATELY. AS THE LAW ABIDING CITIZEN, RETURN OF INCOME WAS ALSO FILED IMMEDIATEL Y AFTER THE CLOSE OF THE YEAR. THE ASSESSING OFFICER HAS IMPOS ED PENALTY FOR CONCEALMENT ONLY BECAUSE THE REVISED RETURN WAS FIL ED AFTER CORRECTING THE MISTAKE AFTER THE NOTICE U/S.143(2) WAS ISSUED TO THE ASSESSEE. IT WAS INADVERTENT MISTAKE OF THE AS SESSEE WHILE FILING THE ORIGINAL RETURN OF INCOME AND THERE IS N OTHING ON RECORD TO SUGGEST INFERRING THE ADVERSE FINDING TO EVADE T AX. THE ASSESSING OFFICER WAS NOT JUSTIFIED IN NOT ACCEPTIN G THE EXPLANATION PUT FORWARD ON BEHALF OF THE ASSESSEE A ND IMPOSED THE PENALTY OF RS.20,65,930/- U/S. 271(1)(C) OF THE ACT. ACCORDING TO US, IT IS NOT JUSTIFIED. THERE IS NO CONSCIOUS CONCEALMENT OR ACT OF FURNISHING OF INACCURATE PART ICULARS ON THE PART OF THE ASSESSEE. THE EXPLANATION PUT FORWARD BY THE ASSESSEE HAS NOT BEEN FOUND FAULTED BY THE CIT(A). IN CASE THE ASSESSEE GAVE EXPLANATION WHICH WAS UNPROVED BUT NO T DISPROVED I.E. IT IS NOT ACCEPTED THAT CIRCUMSTANCES DO NOT L EAD TO THE REASONABLE AND POSITIVE INFERENCE THAT THE ASSESSEE 'S CASE IS FALSE. ABSENCE OF PROOF ACCEPTABLE TO THE DEPARTME NT CANNOT BE EQUATED WITH FRAUD OR WILLFUL DEFAULT TO WARRANT PE NALTY U/S.271(1)(C) OF THE ACT. MERE OMISSION FROM THE R ETURN OF AN ITEM OF RECEIPT AMOUNTS NEITHER TO CONCEALMENT NOR TO DELIBERATE FURNISHING OF INACCURATE PARTICULARS OF INCOME, UNL ESS AND UNTIL THERE IS SOME EVIDENCE TO ESTABLISH THAT THE OMISSI ON WAS ATTRIBUTABLE TO AN INTENTION OR DESIRE ON THE PART OF THE ASSESSEE TO HIDE OR CONCEAL THE INCOME SO AS TO AVOID IMPOSI TION OF TAX THEREON. IN THE PRESENT CASE, THAT THE ASSESSEE HA S DISCLOSED FULL FACTS REGARDING SALE OF PLOTS, THE VALUATION OF THE APPROVED VALUER IS ALSO FURNISHED BY THE ASSESSEE. FOR CALCULATION OF INCOME OF TAX, THE ASSESSEE WAS DEPENDING UPON HER TAX CONSUL TANT, 4 ITA NO.1657/PN/13 SMT. SHAILA SAMPAT GAWANDE APPOINTED BY HER. IT IS A SETTLED LEGAL POSITION TH AT THE ASSESSEE SHOULD NOT SUFFER FOR ANY FAULT ON THE PART OF HIS TAX CONSULTANT OR AUTHORIZED REPRESENTATIVE. THE ASSESSEE SHOULD NOT BE PENALIZED FOR HIS BONAFIDE MISTAKE ESPECIALLY WHEN SHE WAS DE PENDENT ON TAX CONSULTANT. IN THESE CIRCUMSTANCES, THE ASSESS ING OFFICER WAS NOT JUSTIFIED IN HOLDING THAT THE ASSESSEE IS N OT ABLE TO SUBSTANTIATE THE EXPLANATION OFFERED IN THE COURSE OF PENALTY PROCEEDINGS AND THE ASSESSEE HAS FAILED TO ESTABLIS H THAT THE EXPLANATION OFFERED BY HER IS BONAFIDE. THE EXPLAN ATION OFFERED BY THE ASSESSEE WAS NOT FOUND TO BE FALSE BY THE AS SESSING OFFICER. THEREFORE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN LEVYING THE PENALTY. THE SAME WAS RIGHTLY DELETED BY THE CIT(A). THIS REASONED FINDING OF CIT(A) NEEDS NO INTERFEREN CE FROM OUR SIDE. WE UPHOLD THE SAME. 3. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 27 TH DAY OF AUGUST, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 27 TH AUGUST, 2014 GCVSR COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-I, NASHIK 4) THE CIT-I, NASHIK 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE