M/S. TARAN TARAN JAIN HOSTEL PVT. LTD., Bhopal V. THE INCOME TAX OFFICER-4(2), Bhopal

ITA 172/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5676 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 23-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MOHD JAVED
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

TARAN TARAN JAIN ITA NO. 172/IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NO. 172/IND/2016 ASSESSMENT YEAR: 2007-08 M/S TARAN TARAN JAIN HOSTEL PVT.LTD. BHOPAL PAN AABCT-9542L :: APPELLANT VS ITO 4(2) BHOPAL :: RESPONDENT REVENUE BY SHRI PANKAJ MOGRA ASSESSEE BY SHRI MOHD. JAVED ! ' #$ DATE OF HEARING 28.9.2016 %&'( #$ DATE OF PRONOUNCEMENT 28.10.2016 * O R D E R PER SHRI D.T. GARASIA, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-2, BHOPAL, DATED 3.11.201 5 TARAN TARAN JAIN ITA NO. 172/IND/2016 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF RUNNING A HOTEL THE RETURN OF INCOME WAS FILED ON 11.10.2007 DECLARING TOTAL INCOME AT NIL. DURING THE Y EAR UNDER CONSIDERATION THE ASSESSEE HAS SOLD HOTEL. THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS SOLD THE BUSIN ESS PROPERTY AT RS.325818/- AND IT WAS A LOSS IN THE ASSESSMENT YEAR 2006-07. THEREFORE, THE RETURN WAS FIL ED AT NIL. THE ASSESSING OFFICER WAS OF THE VIEW THAT AS P ER THE MARKET VALUE OF THE PROPERTY U/S 50C OF THE ACT IS RS.14,43,000/-, THEREFORE, THE ASSESSEE HAS EARNED SH ORT TERM CAPITAL GAIN OF RS.7,74,746/- THEREFORE PENALTY HAS BEEN LEVIED. THE MATTER CARRIED TO THE LEARNED CIT(A) AND LEARNED CIT(A) CONFIRMED THE SAME. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS CLAIMED CAPITAL GAIN ON THE BLOCK OF TARAN TARAN JAIN ITA NO. 172/IND/2016 3 ASSETS. SECTION 50C OF THE ACT IS NOT APPLICABLE AS PE R THE DECISION IN THE CASE OF CHHABARIA TRUST; 87 ITD 181 (M UM) (SB). THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS MADE THE CLAIM BEFORE THE ASSESSING OFFICER AND THE LEARNED CIT(A) BUT THE ASSESSEE HAS NO T CONCEALED ANY PARTICULARS OF INCOME AND THE ASSESSEE HAS MADE THE LEGAL CLAIM BEFORE THE AUTHORITIES BELOW. THEREFORE, PENALTY CANNOT BE LEVIED. ON THE OTHER HAN D, THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES. WE FIND THAT HON'BLE SUPREME COURT IN THE CAS E OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 3 22 ITR 158 (SC). IN THIS CASE, THE HON'BLE SUPREME COUR T OBSERVED AS UNDER : A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961, SUGGESTS THAT IN ORDER TO BE COVERED BY IT, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY , THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE MEANING OF THE WORD TARAN TARAN JAIN ITA NO. 172/IND/2016 4 'PARTICULARS' USED IN SECTION 271(1)(C) WOULD EMBRA CE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. IN ORDER TO EXPO SE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTL Y COVERED BY THE PROVISION, THE PENALTY PROVISION CAN NOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCUR ATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHIN G WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, T HE LIABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DETA ILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE, NOT EX ACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS . WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORREC T OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 5. WE, THEREFORE, FOLLOWING THE ABOVE DECISION OF TH E HON'BLE SUPREME COURT, ALLOW THE APPEAL OF THE ASSESSEE . 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . TARAN TARAN JAIN ITA NO. 172/IND/2016 5 THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 28 OCTOBER, 2016. SD/- SD/- ( ..!') (..) #$ (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER J UDICIAL MEMBER (') / DATED : 28 OCTOBER, 2016. DN/