Roots Air Systems Pvt. Ltd., Noida V. ITO, New Delhi

ITA 1759/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2812 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 04-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: THEJ SHRI S R SENAPATI SR D
• Assessee Lawyers: SANJAY KUMAR SHARMA AUTHORISED
• Keywords: Revised return
• Section: 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES E : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA.NO.1759/DEL./2016 ASSESSMENT YEAR 2010-2011 ROOTS AIR SYSTEMS PVT. LTD., B-9, SECTOR-59, NOIDA 201 301. PAN AAACR0104M VS THE INCOME TAX OFFICER, WARD-15(4), NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SANJAY KUMAR SHARMA, AUTHORISED FOR THE*-J ASSESSEE FOR REVENUE : SHRI S.R. SENAPATI, SR. D.R. DATE OF HEARING : 15.03.2018 DATE OF PRONOUNCEMENT : 20.03.2018 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-XVIII, NEW DELHI, DATED 25 TH AUGUST, 2014, FOR THE A.Y. 2010-2011, CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2. BRIEFLY, THE FACTS AS NOTED IN THE PENALTY ORDE R ARE THAT ASSESSMENT IN THIS CASE WAS COMPLETED UNDER SE CTION 2 ITA.NO.1759/DEL./2016 ROOTS AIR SYSTEMS PVT. LTD., NOIDA. 143(3) ON DATED 29 TH MARCH, 2013 AT (-) RS.10,13,078/-. DURING THE ASSESSMENT PROCEEDINGS, WHILE VERIFYING THE CAL CULATION OF LONG TERM CAPITAL GAINS SHOWN BY THE ASSESSEE, THE A.O. NOTED AN EXCESS CLAIM OF DEDUCTION AMOUNTING TO RS.1,55,4 19/- WHICH WAS SET-OFF AGAINST THE LOSS. THE A.O. INITIATED TH E PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT UNDE R SECTION 271(1)(C) OF THE I.T. ACT. THE ASSESSEE SUBMITTED B EFORE A.O. IN THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT THAT LONG TERM CAPITAL GAINS AS PER RETURN OF INCOME WAS RS.62,35,200/- AND DURING ASSESSMENT PROCEEDINGS, R EVISED CALCULATION WAS SUBMITTED AT RS.51,72,050/-. HOWEVE R, THE A.O. HAS CALCULATED IT AT RS.53,27,469/-. IT WAS, T HEREFORE, SUBMITTED THAT THERE IS A DIFFERENCE IN CALCULATING LONG TERM CAPITAL GAINS BY THE ASSESSEE AND BY THE A.O. DUE T O DIFFERENT INTERPRETATIONS TAKEN IN THE CASE OF COST PRICE OF DIFFERENT YEARS OF CALCULATION OF INDEXED COST. THE ASSESSEE HAS NO T HIDDEN ANY FACT OR MATERIAL FACT. ALL DOCUMENTARY EVIDENCES AN D DETAILS WERE SUBMITTED FOR CALCULATION OF LONG TERM CAPITAL GAINS. IT IS THE DIFFERENCE DUE TO COST PRICE, FOR INDEXATION PU RPOSE ONLY. THE 3 ITA.NO.1759/DEL./2016 ROOTS AIR SYSTEMS PVT. LTD., NOIDA. ASSESSEE ACCEPTED THE CALCULATION OF THE A.O. AND D ID NOT DISPUTE, FOR BUYING PEACE WITH THE DEPARTMENT. THE A.O. DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND NOTED THA T ASSESSEE MADE EXCESS CLAIM OF RS.1,55,419/-, ON WHICH, PENAL TY OF RS.48,024/- WAS LEVIED. THE LD. CIT(A) NOTED THAT I T IS THE CASE OF WILLFUL ATTEMPT TO EVADE TAX AND ACCORDINGLY, DI SMISSED THE APPEAL OF ASSESSEE. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT PENALTY IS NOT JUSTIFIED IN THE MATTER. T HE ASSESSEE, IN THE RETURN OF INCOME, HAS SHOWN LONG TERM CAPITAL G AINS AT RS.62,35,200/- AND IN THE REVISED RETURN, IT WAS RE DUCED TO RS.51,72,050/-. A.O. HOWEVER, ADOPTED ANOTHER FIGUR E OF RS.53,27,469/-. IT IS, THEREFORE, CLEAR THAT WHATEV ER FIGURE WAS GIVEN ORIGINALLY BY THE ASSESSEE, CALCULATION OF TH E SAME WAS NOT CORRECT. THE ASSESSEE EXPLAINED THAT THERE IS A DIF FERENCE OF OPINION FOR CALCULATING THE COST PRICE FOR INDEXATI ON PURPOSE. THE ASSESSEE DECLARED ALL THE MATERIAL FACTS IN THE RETURN OF INCOME AS WELL AS AT THE ASSESSMENT STAGE. THERE IS A MINOR 4 ITA.NO.1759/DEL./2016 ROOTS AIR SYSTEMS PVT. LTD., NOIDA. VARIATION IN CALCULATING THE LONG TERM CAPITAL GAIN S. THEREFORE, IT MAY NOT BE A FIT CASE FOR LEVY OF PENALTY BECAUS E THE ASSESSEE WOULD NOT HAVE CONCEALED THE PARTICULARS OF INCOME AND WOULD NOT FILE INACCURATE PARTICULARS OF INCOME. THE LD. CIT(A) WITHOUT GIVING ANY REASONS AND CONSIDERING THE EXPLANATION OF ASSESSEE, MERELY NOTED THAT IT IS A CASE OF WILLFUL ATTEMPT T O EVADE TAX. FURTHER, IT IS A FACT THAT ASSESSEE FILED ORIGINAL RETURN OF INCOME AT -NIL- INCOME AND LATER ON, INCOME IS CALCULATED BY THE A.O. EVEN AT LOSS. SO, THERE IS NO QUESTION OF HOLDING T HAT ASSESSEE WILLFULLY ATTEMPTED TO EVADE TAX. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT PENALTY IS NOT LEVIABLE IN THIS CASE. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (LP SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 20 TH MARCH, 2018 VBP/- 5 ITA.NO.1759/DEL./2016 ROOTS AIR SYSTEMS PVT. LTD., NOIDA. COPY TO 1. THE APPLICANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT E BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.