The ITO, Ward-5(1), RAJKOT-GUJARAT V. Shri Harikishan J. Satikunver,q, RAJKOT-GUJARAT

ITA 17/RJT/2012

• Counselvise Citation: 1724914 RSA 2012
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-05-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 11-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: DM RINDANI
• Keywords: Ignorance of law

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVAST AVA, AM ITA NO.17/RJT/2012. / ASSESSMENT YEAR:2002-03 THE INCOME-TAX OFFICER, WARD5(1), RAJKOT. ( */ APPELLANT) VS. SHRI HARKISHAN J. SATIKUNVER, C/O. J. P. JEWELLERS, PALACE ROAD, SONI BAZAR, RAJKOT. PAN:AIVPS 5750 Q. +,*/ RESPONDENT - / REVENUE BY SHRI M. K. SINGH. D.R /- / ASSESSEE BY SHRI D. M. RINDANI, C.A. - / DATE OF HEARING 28-05-2012 - / DATE OF PRONOUNCEMENT 01-06-2012 / / / / ORDER . .. . . . . . , , , , / T. K. SHARMA, J. M. THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DATED 28-11-2011 OF CIT (A)-IV, R AJKOT FOR CANCELING THE PENALTY OF RS.3,10,500/- LEVIED BY AO U/S. 271(1)(C ) OF I.T. ACT, 1961 FOR THE ASSESSMENT YEAR 2002-03.. 2. BRIEFLY STATED THE FACTS ARE THAT IN THIS CASE, THE AO LEVIED PENALTY OF RS.3,10,500/- IN RESPECT OF ADDITION MADE AND SUSTA INED BY THE TRIBUNAL IN RESPECT OF INCREASE IN SALE PRICE OF PLOT OF LAND E STIMATED. ON APPEAL, IN THE IMPUGNED ORDER, LD. CIT(A) CANCELLED THE PENALTY ON THE GROUND THAT THERE IS NO DIRECT EVIDENCE ON RECORD TO SHOW THAT THE SALE PRI CE OF PLOT OF LAND OF RS.19,89,632/- IS A FALSE VALUE SHOWN BY THE ASSESS EE IN THE RETURN OF INCOME. THE LD. CIT(A) ALSO OBSERVED THAT VALUE OF SALE OF RS.20,47,530/- SUBSTITUTED BY ITA NO 17/RJT/2012 2 ITAT IS BASED ON THE REPORT OF DVO AND IS VERY NEAR TO THE VALUE SHOWN BY THE ASSESSEE HIMSELF AND IS ONLY ESTIMATION. WITH REGA RD TO NON-ALLOWANCE OF CAPITAL LOSS OF RS.3,11,072/- OF ASSESSMENT YEAR 1998-99 FO R SET OFF WAS THAT THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 1998-99 WAS FLED BY THE ASSESSEE ON 03-03- 1999, I.E. AFTER THE DUE DATE OF FILING THE RETURN OF INCOME U/S.139(1) OF THE I.T. ACT. THE DETAILED REASONING GIVEN BY LD. CIT(A) IS CONTAINED IN PARA-4.1 AND 4.3 OF THE IMPUGNED ORDER. 3. AGGRIEVED WITH THE ORDER OF LD. CIT(A) CANCELING THE PENALTY, THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF R EVENUE, SHRI M. K. SINGH, D.R. APPEARED AND POINTED OUT THAT ASSESSEE CLAIMED INADMISSIBLE UNABSORBED CAPITAL LOSS OF RS.3,11,071/- AND CLAIMED THE SET O FF OF CAPITAL LOSS AGAINST THE CAPITAL GAIN. FOR THE ASSESSMENT YEAR UNDER APPEAL, THE AO RIGHTLY LEVIED THE PENALTY U/S.271(1)(C) IN RESPECT OF NON-ALLOWANCE O F THIS INADMISSIBLE LOANS. FURTHER, PENALTY U/S.271(1)(C) IS ALSO LEVIABLE IN RESPECT OF INFORMATION OF VALUE OF PLOTS COLLECTED BY AO FROM REGISTRAR OFFICE FOR DET ERMINATION OF CORRECT SALE PRICE. 5. AS AGAINST THIS, SHRI D. M. RINDANI, C.A. APPEAR ED FOR THE ASSESSEE VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(A). HE S UBMITTED THAT ADDITION OF CAPITAL GAIN WAS MADE ON ACCOUNT OF PROVISION OF SE C.53C AND ASSESSEE WAS OF THE BONA FIDE BELIEF THAT THIS PROVISION CANNOT BE APPLIED RETROSPECTIVELY. HE SUBMITTED THAT IN RESPECT OF NON-ALLOWANCE OF UNABS ORBED LOSS OR DETERMINATION OF CAPITAL GAIN, PENALTY U/S.271(1)(C) OF THE I.T. ACT IS NO T LEVIABLE BECAUSE THERE IS CONCEALMENT OF FACT BY THE ASSESSEE. 6. HAVING HEARD BOTH SIDES, WE HAVE CAREFULLY GONE THROUGH THE REASONING GIVEN BY THE LD. CIT(A) FOR CANCELING THE PENALTY O F RS.3,10,500/- WHICH WAS LEVIED BY AO ON ACCOUNT OF NON-ALLOWANCE UNABSORBED CAPITAL LOSS OF RS.3,11,072/- AND SMALL ADDITION IN CAPITAL GAIN B Y INVOKING THE PROVISIONS ITA NO 17/RJT/2012 3 CONTAINED IN SEC.53C OF THE I.T. ACT, 1961. FROM T HE FACTUAL MATRIX OF THE CASE, IT IS CLEAR THAT ASSESSEE HAS NOT FURNISHED INCORRECT OR INACCURATE INFORMATION IN THE RETURN OF INCOME. THE CLAIM OF SET OFF WAS MADE BY THE ASSESSEE ON ACCOUNT OF IGNORANCE OF LAW OR INCORRECT UNDERSTANDING OF RELE VANT PROVISIONS OF THE INCOME TAX ACT FOR WHICH THE PENALTY U/S.271(1)(C) IS NOT LEVIABLE. TO SUM-UP, WE ARE OF THE VIEW THAT LD. CIT(A) HAS GIVEN COGENT REASONS O F CANCELLING THE PENALTY OF RS.3,10,500/- WHICH WAS LEVIED BY AO U/S.271(1)(C) . WE DECLINED TO INTERFERE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/- SD/- ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 01-06-2012. /RAJKOT - -- - +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-THE INCOME-TAX OFFICER, WARD-5 (1), RA JKOT. 2. +,* / RESPONDENT-SHRI HARKISHAN J. SATIKUNVER, RAJKOT. 3. : / CONCERNED CIT-III, RAJKOT. 4. :- / CIT (A)-IV, RAJKOT. 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASSTT. REGISTRAR , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.