Shri Ramesh G. Bhatia S/o. Ganeshdas Bhatia, Indore V. The I.T.O., Indore

ITA 166/IND/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9679 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-12-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 30-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MITRA
• Assessee Lawyers: P K JAIN
• Keywords: Revised return

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.166/IND/2010 A.Y.2006-07 RAMESH G. BHATIA INDORE PAN ACFPB-4775L APPELLANT VS INCOME TAX OFFICER 2(2), INDORE RESPONDENT APPELLANT BY : SHRI P.K. JAIN RESPONDENT BY : SHRI PRADEEP KUMAR MITRA, SR. D R O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 4.1.2010. THE SUM AND SUBSTA NCE OF THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IS THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIF IED IN UPHOLDING THE PENALTY LEVIED BY THE ASSESSING OFFIC ER U/S 271(1)(C) OF THE ACT AS THERE WAS NO CONSCIOUS CONC EALMENT ON THE PART OF THE ASSESSEE. 2 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I P.K. JAIN, LD. COUNSEL FOR THE ASSESSEE AND SHRI P.K. MI TRA, LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNE D ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL DATED 12.7. 2010 IN ITA NO. 165/IND/2010 IN THE CASE OF THE BROTHER OF THE ASSESSEE AS THE FACTS ARE GERMANE OUT OF SALE OF THE SAME PLOT OF LAND. THE LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE DID NOT CONTROVERT THE ASSERTION OF THE ASSESSEE BUT STILL INVITED OUR ATTENTION TO PARA 1 OF THE IMPUGNED ORDER AND ALSO THE FINDINGS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONTAI NED IN 1.03 AND 1.04. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSI ON, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION OF THE O RDER OF THE TRIBUNAL IN THE CASE OF SHRI SURESHCHAND BHATIA (IT A NO. 165/IND/2010 ORDER DATED 12.7.2010) :- THE ASSESSEE HAS CHALLENGED THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DATED 3 4.1.2010 ON THE GROUND THAT THE LD. FIRST APPELLATE AUTHORITY WRONGLY UPHELD THE IMPOSITION OF PENALTY U/S 271(1) (C) OF THE ACT. THOUGH THE ASSESSEE HAS TAKEN AS MANY AS SEVEN GROUNDS OF APPEAL BUT GROUND NOS. 2 TO 7 WERE NOT P RESSED BEING ARGUMENTATIVE IN NATURE. 2. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT WHATEVER SALE CONSIDERATION WAS RECEIVED BY T HE ASSESSEE, WAS DULY SHOWN IN THE RETURN AND THE AMOU NT ENHANCED BY THE REGISTRAR IN THE FORM OF STAMP DUTY WAS PAID BY THE PURCHASER WHICH WAS INITIALLY NOT IN TH E KNOWLEDGE OF THE ASSESSEE AND THE ASSESSEE HAS NOTH ING TO DO WITH THE AMOUNT ENHANCED BY THE OFFICE OF THE RE GISTRAR. IT WAS SUBMITTED THAT THERE IS NEITHER ANY CONCEALM ENT NOR FURNISHING OF INACCURATE PARTICULARS. ON THE OTHER HAND, THE LEARNED SR. DR STRONGLY DEFENDED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE SIGNED THE DOCUMENTS A S THE PROPERTY WAS GOT REGISTERED ON 5.4.2005 AND THE RET URN WAS FILED ON 30.11.2006, THEREFORE, INACCURATE PARTICUL ARS WERE FILED BY THE ASSESSEE. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON FILE. BRIEF FACTS ARE THAT THE ASSESSEE SOLD A PLOT OF LAND TO TWO DIFFERENT BUYER S BY WAY OF TWO DIFFERENT SALE DEEDS ON THE SALE CONSIDERATION AS MENTIONED IN THE RESPECTIVE SALE DEEDS. HOWEVER, T HE OFFICE OF THE REGISTRAR WAS OF THE VIEW THAT THE MARKET VA LUE OF THE PROPERTY IS HIGHER, THEREFORE, HE CHARGED EXTRA STA MP DUTY FROM THE PURCHASER AND THEREAFTER THE REGISTERED SA LE DEEDS WERE HANDED OVER TO THE PURCHASER. THE ASSESSEE DEC LARED THE SALE CONSIDERATION MENTIONED IN SUCH SALE DEEDS IN ITS RETURN. HOWEVER, THE FACT REMAINS THAT THE EXTRA S TAMP DUTY CHARGED BY THE OFFICE OF THE REGISTRAR WAS NOT A PA RT OF THE SALE DEED BUT WAS PURELY PAID BY THE PURCHASER. NOW THE QUESTION ARISES WHETHER SUCH ESTIMATION LEADS TO CONCEALMENT OF INCOME AND ALSO WHETHER THE ASSESSEE RECEIVED ANY PART OF SUCH ENHANCEMENT. THE OBVIOUS REPLY IS NO, FIRSTLY BECAUSE ESTIMATION NORMALLY DEPENDS UPO N THE INDIVIDUAL PERCEPTION OR RATES FIXED BY THE COLLECT OR AND SECONDLY THERE WAS NO EVIDENCE ON RECORD THAT THE A SSESSEE RECEIVED MORE THAN THE AMOUNT WHICH IS MENTIONED ON THE RESPECTIVE SALE DEEDS. IN SUCH A SITUATION THE DEC ISION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT IN HARI GOPAL SINGH V. CIT; 258 ITR 85 SUPPORTS THE CASE OF THE ASSESSE E. THE LD. SR. DR, DURING HEARING POINTED OUT THAT WHEN TH E ENHANCEMENT OF VALUE WAS BROUGHT TO THE NOTICE OF T HE ASSESSEE, HE REVISED HIS RETURN FOR CAPITAL GAINS P URPOSES. I AM NOT IN AGREEMENT WITH SUCH ARGUMENT BECAUSE EVEN IF FOR THE SAKE OF CAPITAL GAIN PURPOSES, THE ASSESSEE FIL ED A REVISED RETURN, IT DOES NOT MEAN THE ASSESSEE CONCE ALED ITS 4 INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E AND AS SUCH NO PENALTY IS LEVIABLE. THE RATIO LAID DOWN IN CIT V. SURESHCHAND 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 THE SAME WAS N OT DECLARED IN THE RETURN, RATHER AS CLAIMED BY THE AS SESSEE, IT WAS NOT EVEN IN HIS KNOWLEDGE THAT ANY INCOME WAS ENHANCED AND LATER ON THE ASSESSEE WAS TOLD ABOUT S UCH ENHANCEMENT. EVEN OTHERWISE, THE ENHANCED AMOUNT OF STAMP DUTY WAS PAID BY THE PURCHASER SINCE HIS SALE DEED WAS IMPOUNDED BY THE OFFICE OF THE REGISTRAR. FOR IMPOSING PENALTY U/S 271(1)(C) EITHER THERE SHOULD BE CONCEA LMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF S UCH INCOME. IN THE PRESENT APPEAL, THE SALE CONSIDERATI ON WAS DULY DECLARED BY THE ASSESSEE IN ITS RETURN AND THE RE IS NO EVIDENCE THAT EXTRA MONEY WAS TRANSACTED BETWEEN TH E SELLER AND THE PURCHASER. SINCE THE ESTIMATED ENHAN CED STAMP DUTY WAS PAID BY THE PURCHASER AND THE ASSESS EE HAS NOTHING TO DO WITH THE SAME, ITSELF IS NOT A GOOD G ROUND FOR IMPOSING PENALTY U/S 271(1)(C) OF THE ACT. CONSEQUE NTLY, THE PENALTY OF RS. 92,100/- IMPOSED IS HEREBY CANCELLED . FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON2 .7.2010. IT IS SEEN THAT CONSOLIDATED ORDER WAS PASSED BY LD . FIRST APPELLATE AUTHORITY IN THE CASE OF BOTH THE BROTHERS. THE FA CTS ARE THAT THE PRESENT ASSESSEE ALONG WITH HIS BROTHER OWNED A PLOT OF LAN D WHICH WAS SOLD TO TWO DIFFERENT BUYERS BY WAY OF TWO DIFFERENT SALE D EEDS. THE FACTS HAVE ALREADY BEEN ANALYSED BY THE TRIBUNAL IN THE CASE O F THE BROTHER OF THE ASSESSEE AND THE ISSUE IS GERMANE OUT OF THE SALE O F THE SAME PLOT OF LAND. THE STAMP VALUATION AUTHORITY CHARGED THE STA MP DUTY ON THE VALUATION ASCERTAINED BY THE OFFICE OF THE SUB-REGI STRAR BUT THE FACT REMAINS THAT THE ASSESSEE DULY SHOWED THE AMOUNT IN ITS RETURN AND IF THE AMOUNT WAS ENHANCED BY THE REGISTRAR IN THE FOR M OF STAMP DUTY WHICH WAS PAID BY THE PURCHASER AND THE AMOUNT PAID BY THE PURCHASER, 5 IT WAS NOT IN THE KNOWLEDGE OF THE ASSESSEE, THEREF ORE, IT CANNOT BE SAID THAT THE ASSESSEE EITHER FURNISHED INACCURATE PARTI CULARS OR CONCEALED THE PARTICULARS OF SUCH INCOME. THE TRIBUNAL HAS AL READY RELIED UPON THE DECISIONS FROM THE HONBLE PUNJAB & HARYANA HIGH CO URT IN THE CASE OF HARIGOPAL SINGH VS. CIT; 258 ITR 85; THE RATIO LAID DOWN IN CIT V. SURESHCHAND MITTAL; 251 ITR 9 (SC) AND CONCLUDED T HAT SINCE THE ENHANACED AMOUNT WAS PAID BY THE PURCHASER AS HIS S ALE DEED WAS IMPOUNDED BY THE OFFICE OF THE REGISTRAR, THEREFORE , THERE IS NO QUESTION OF IMPOSING PENALTY ON THE ASSESSEE. NO CONTRARY D ECISION WAS BROUGHT TO OUR NOTICE BY THE REVENUE, THEREFORE, RESPECTFUL LY FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, ESPECIALLY WHEN TH E FACTS ARE IDENTICAL AND THE ISSUE IS GERMANE OUT OF THE SAME TRANSACTIO N, WE HAVE NO HESITATION IN ALLOWING THE APPEAL OF THE ASSESSEE. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JANUARY, 2011. (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24.1.2011 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD F ILE D/-