Income Tax Officer, Ward -2(1) Belagavi., Belagavi V. Sri Madivalappa Mahadevappa Yaligar., Belagavi

ITA 169/PAN/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1501 (ITAT-PANAJI)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 27-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMRITI BHARDWAJ LD
• Assessee Lawyers: OMKAR S GODBOLE
• Keywords: Wrong claim
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 16 9 /PNJ/2015 : (A.Y 200 9 - 1 0 ) INCOME TAX OFFICER, WARD - 2(1), BELAGAVI (APPELLANT) VS. MADIVALAPPA MAHADEVAPPA YALIGAR, H. NO. 4506/B, CHAVAT GALLI, BELAGAVI (RESPONDENT) PAN : AAPPY7726C ASSESSEE BY : OMKAR S. GODBOLE , CA REVENUE BY : SMT. SMRITI BHARDWAJ, LD. DR DATE OF HEARING : 05/08/2015 DATE OF PRONOUNCEMENT : 05/08/2015 O R D E R PER GEORGE MATHAN : 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), BELAGAVI IN ITA NO.13/BGM/2012 - 13 DT. 3.2.2015 FOR THE A.Y 2009 - 10. SMT. SMRITI BHARDWAJ , LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI OMKAR S. GODBOLE, CA REPRESENTED ON BEHALF OF THE ASSESSEE. 2. IT WAS SUBMITTED BY THE LD. DR THAT THE ASSESSEE IS AN ADVOCATE. THE ASSESSEE HAD FILED HIS RETURN OF INCOME CLAIMING DEDUCTION U/S 54 IN RESPECT OF THE PROPERTY WHICH HAD BEEN SOLD BY HIM. IT WAS THE SUBMISSION THAT THE SAID 2 ITA NO. 169/PNJ/2015 (A.Y : 2009 - 10) PROPERTY HAD NOT BEEN HELD FOR MORE THAN 36 MONTHS AND CONSEQUENTLY, THE CLAIM OF DEDUCTION U/S 54 HAD BEE N DENIED TO THE ASSESSEE AND THE ASSESSEE HAD ALSO AGREED TO THE DENIAL OF THE SAID EXEMPTION U/S 54. IT WAS THE SUBMISSION THAT CLEARLY THE ASSESSEE HAS ADMITTED TO EVADE TAX AND HAS MADE A WRONG CLAIM ON WHICH PENALTY U/S 271 (1)(C) WAS LIABLE TO BE LEVI ED. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD DELETED THE PENALTY LEVIED ACCEPTING THE BONA FIDE OF THE ASSESSEE. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 3. IN REPLY, THE LD. AR SUBMITTED THAT THE ASSESSEE H AD PAID ADVANCE FOR PURCHASE OF THE PROPERTY REPRESENTING A PLOT OF LAND ON 7.4.2005. THE SAID PLOT OF LAND WAS REGISTERED THROUGH SALE DEED DT. 29.8.2005. THE SAID PROPERTY WAS SOLD ON 9.4.2008 AND THE ASSESSEE WAS UNDER THE BONA FIDE BELIEF THAT AS THE ASSESSEE HAD PAID THE ADVANCE ON 7.4.2005, THE SALE OF THE PROPERTY ON 9.4.2008 MADE THE TRANSACTION LONG TERM AND THE ASSESSEE HAD PURCHASED ANOTHER FLAT ON 29.8.2007. IT WAS THE SUBMISSION THAT CLEARLY THIS WAS A BONA FIDE CLAIM AND THE ORDER OF THE LD . CIT(A) WAS LIABLE TO BE UPHELD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE ORDER OF THE LD. CIT(A), MORE SPECIFICALLY THE FACTS AS HAS BEEN BROUGHT OUT IN THE CHART AT PAGE 8 OF THE ORDER OF THE LD. CIT(A), CLEARLY SHOWS THAT THE A SSESSEE DID HAVE A BONA FIDE BELIEF. JUST BECAUSE THE ASSESSEE IS AN ADVOCATE, IT WOULD NOT MEAN THAT HE CANNOT MAKE MISTAKE IN LAW . M ORE SPECIFICALLY, THE ASSESSEE IS NOT A TAX COUNSEL AND EVEN TAX COUNSELS DO MAKE MISTAKES AS IS EVIDENT FROM THE DECISI ON OF THE HON'BLE SUPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPERS (P.) LTD. REPORTED IN [2012] 25 TAXMANN.COM 400 (SC) . IN THE CIRCUMSTANCES, AS THE REVENUE HAS NOT BEEN ABLE TO DISLODGE THE FINDINGS AS ARRIVED AT BY THE LD. 3 ITA NO. 169/PNJ/2015 (A.Y : 2009 - 10) CIT(A) IN RESPECT OF THE BONA FIDE OF THE ASSESSEE, THE FINDINGS OF THE LD. CIT(A) CANCELLING THE LEVY OF PENALTY U/S 271 (1)(C) STANDS UPHELD. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/08/2015. S D / - (N.S. SAINI) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 05/08/ 201 5 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 4 ITA NO. 169/PNJ/2015 (A.Y : 2009 - 10) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 05/08/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 06/08/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 06/08/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 06/08/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 06/08/2015 SR.PS 6. DATE OF PRONOUNCEMENT 05/08/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 06/08/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER