Smt. Jigyaben Mayurbhai Patel, Ahmedabad V. The ACIT, Anand Circle, Anand

ITA 172/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6118 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 17-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A TIRKEY
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO. 172/AHD/2014 (ASSESSMENT YEAR:2009-10) SMT. JIGYABEN MAYURBHAI PATEL UJAM BUNGLOW, B/H. AWISHKAR COMPLEX, V V NAGAR ROAD, ANAND APPELLANT VS. ASST. COMMISSIONER OF INCOME TAX, ANAND CIRCLE, ANAND RESPONDENT PAN: ANCPP9177C /BY ASSESSEE : MR. ANIL R. SHAH WITH MS. KIN JAL SHAH, A.R. /BY REVENUE :MR. A. TIRKEY, SR. D.R. /DATE OF HEARING : 20.04.2017 /DATE OF PRONOUNCEMENT : 26.04.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 EMANATES AGAINST THE CIT(A),-I, BARODAS ORDER DATED 25.11.2013, PA SSED IN APPEAL NO. CAB- I/162/2013-14, UPHOLDING ASSESSING OFFICERS ACTION IN IMPOSING PENALTY OF RS.4,13,700/- IN ORDER DATED 30.03.2012, IN PROCEE DINGS UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT TH E ACT. ITA NO.172/AHD/2014 (SMT. JIGYABEN M. PATELVS. ACIT ) A.Y. 2009-10 - 2 - 2. WE COME TO RELEVANT FACTS. THE ASSESSEE FILED H ER RETURN ON 02.03.2010 DECLARING INCOME OF RS.1,07,620/-. THE SAME WAS TA KEN UP FOR SCRUTINY. THE ASSESSING OFFICER ISSUED SECTION 143(2) NOTICE DATE D 23.08.2010. THE ASSESSEE THEREAFTER REVISED HER RETURN THEREBY INCR EASING HER INCOME TO RS.19,33,330/-. THIS INCREASE IN TAXABLE INCOME WA S BECAUSE OF THE FACT THAT SHE HAD REDEEMED SARDAR SAROVAR NIGAM LTD. BONDS IN JANUARY 2009 (AS RECEIVED FROM HER LATE FATHER) FOR RS.23,20,000/- A S SUBJECTED TO TDS @11.33%. THE ASSESSING OFFICER THEREAFTER COMPUTED /ADDED LONG TERM CAPITAL GAINS OF RS.72,312/- THEREBY ASSESSING THE TOTAL TAXABLE INCOME AS RS.20,05,642/-. HE FURTHER INITIATED THE IMPUGNED PENALTY PROCEEDINGS ALLEGING CONCEALMENT OF INCOME. QUANTUM PROCEEDING S SEEN TO HAVE ATTAINED FINALITY AT THIS STAGE ITSELF. 3. WE NOW ADVERT TO THE IMPUGNED PENALTY PROCEEDING S. THE ASSESSING OFFICER RE-NARRATED THE ABOVE QUANTUM FAC TS TO CONCLUDE THAT THE ASSESSEE HAD INDEED CONCEALED HER ABOVE LONG TERM C APITAL GAINS FROM BEING ASSESSED AS HER ORIGINAL RETURN DID NOT INCLUDE THE REDEMPTION INCOME ARISING FROM THE ABOVE BONDS. HE THEN IMPOSED THE IMPUGNED PENALTY OF RS.4,13,700/- AS AFFIRMED IN THE LOWER APPELLATE OR DER UNDER CHALLENGE. 4. WE HAVE HEARD BOTH THE PARTIES STRONGLY REITERAT ING THEIR RESPECTIVE STANDS. CASE FILE PERUSED. THERE IS NO DISPUTE THAT THE ASSESSEE HAD FILED HER REVISED RETURN ON 16.12.2010 INCLUDIN G THE REDEMPTION INCOME ARISING FROM THE BONDS STATED HEREINABOVE. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGUES THAT THIS REVISED RETURN CAME ONLY AFTER THE ASSESSING OFFICERS SCRUTINY NOTICE DATED 23.08.201 0. WE DEEM IT APPROPRIATE FIRST OF ALL TO REFER TO HONBLE JURISD ICTIONAL HIGH COURTS DECISION IN (2015) 377 ITR 389 (GUJARAT) CIT VS. BHAVINKUMAR M. DAGLI WHEREIN THEIR LORDSHIPS HOLD THAT IF AN ASSESSEE FILES REVI SED RETURN DECLARING ADDITIONAL ITA NO.172/AHD/2014 (SMT. JIGYABEN M. PATELVS. ACIT ) A.Y. 2009-10 - 3 - INCOME IN QUESTION AND PRIOR TO THAT THE DEPARTMENT HAS NO MATERIAL TO PINPOINT THE SAME TO BE LACKING IN ORIGINAL RETURN, THERE IS NO JUSTIFICATION FOR IMPOSING SECTION 271(1)(C) PENALTY. WE AFFORDED AM PLE OPPORTUNITY TO LEARNED DEPARTMENTAL REPRESENTATIVE TO REBUT THE SA ME. HE AGAIN REITERATES THE ABOVE NARRATED FACT THAT THE ASSESSEES REVISED RETURN CAME ONLY AFTER SECTION 143(2) NOTICE DATED 23.08.2010 PRECEDING TH E ABOVE REVISED RETURN FILED ON 16.12.2010. IT EMERGES THAT THE SAID SCRU TINY NOTICE FORMS PART OF THE CASE FILE AT PAGE 7. THERE IS NOT EVEN AN IOTA OF SUGGESTION COMING THEREFROM THAT THE ASSESSING OFFICER HAD EVER INTENDED TO PUT UP THE ASSESSEE ON NOTICE QUA HER INCOME IN QUESTION ARISING FROM REDEMPTION OF THE ABOVESTATED BONDS. WE THEREFORE APPLY HONBLE JURISDICTIONAL H IGH COURTS DECISION HEREINABOVE TO DELETE THE PENALTY IN QUESTION AMOUN TING TO RS.4,13,700/-. 5. THIS ASSESSEES APPEAL IS ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 26 TH DAY OF APRIL, 2017.] SD/- SD/- ( PRAMOD KUMAR ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 26/04/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0