JAYALAXMI T. THAKKAR, MUMBAI V. ITO 15(3)(1), MUMBAI

ITA 1830/MUM/2010

• Counselvise Citation: 183019914 RSA 2010
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 03-11-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 08-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANTAM BOSE
• Assessee Lawyers: D C JAIN
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI B.R. MITTAL (JUDICIAL MEMBER) AND SHRI P.M. JAGTAP (ACCOUNTANT MEMBER) ITA NO.1830/MUM/2010 ASSESSMENT YEAR-2004-05 SMT. JAYALAXMI THAKKAR, 31, MATRU CHAYYA, 3 RD FLOOR, M.G. ROAD, MULUND (W), MUMBAI-400 080 PAN-ADLPT 6238R VS. THE ITO 15(3)(1), MATRU MANDIR, TARDEO, GRANT ROAD, MUMBAI-400 007 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI D.C. JAIN RESPONDENT BY: SHRI SHANTAM BOSE DATE OF HEARING :3.11.2011 DATE OF PRONOUNCEMENT: 18.11.2011 O R D E R PER B.R. MITTAL, JM : THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 2004-05 AGAINST ORDER OF LD. CIT(A) DT.24.12.2009 DISPUTING ORDER O F LD. CIT(A) IN CONFIRMING PENALTY OF RS. 89,000/- LEVIED U/S. 271(1)(C) OF TH E ACT. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. WE OBSERV E THAT DURING THE ASSESSMENT YEAR UNDER CONSIDERATION, ASSESSEE SURRE NDERED HER TENANCY RIGHT AND RECEIVED AN AMOUNT OF RS. 12,50,000/-. THE ASS ESSEE WHILE COMPUTING CAPITAL GAIN, DEDUCTED AN AMOUNT OF RS. 4,69,945/- ON ACCOUNT OF INDEXED COST OF IMPROVEMENT. THE ASSESSING OFFICER STATED THAT THIS IS NOT IN ORDER AS PER PROVISIONS OF SEC. 48 OF I.T. ACT. IT IS RELEVAN T TO STATE THAT ASSESSEE ALSO MADE INVESTMENT OF RS. 6,70,000/- IN NABARD BO NDS AND DECLARED NET ITA NO. 1830/M/2010 2 TAXABLE INCOME AT RS. 1,55,500/-. LATER ON ASSESSE E REVISED RETURN FILED PURSUANT TO NOTICE U/S. 148 OF THE ACT DECLARED TOT AL INCOME AT RS. 5,70,000/-. IT WAS CONTENDED THAT ASSESSEE CLAIMED INDEXED COST OF IMPROVEMENT WHILE DETERMINING LONG TERM CAPITAL GAIN BONAFIDELY AND T HERE WAS NO INTENTION TO CONCEAL THE EVIDENCE OF INCOME. THE AO DID NOT ACC EPT THE CONTENTION OF ASSESSEE AND IMPOSED PENALTY OF RS. 89,000/- BEING 100% OF TAX SOUGHT TO BE EVADED OF SAID AMOUNT OF RS. 4,95,945/-. THE LD . CIT(A) ALSO CONFIRMED THE ACTION OF AO. 3. DURING THE COURSE OF HEARING, LD. AR SUBMITTED T HAT IT WAS A BONAFIDELY MISTAKE UNDER WRONG ADVICE TO ASSESSEE. THAT ASSES SEE IS AN OLD LADY OF 85 YEARS AND THERE WAS NO INTENTION TO CONCEAL HER INC OME/OR FILE WRONG PARTICULARS OF INCOME. IT WAS ALSO POINTED OUT THAT ASSESSEE DISCLOSED ALL THE RELEVANT FACTS IN THE RETURN FILED. THE LD. AR REL YING ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS RELIANCE P ETROPRODUCT LTD. 322 ITR 158 SUBMITTED THAT MERE MAKING OF CLAIM WHICH IS NO T SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS REGARDING INCOME OF ASSESSEE. HE SUBMITTED THAT PENALTY LEVIED IS NO T JUSTIFIED. HOWEVER, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THERE WA S A DELIBERATE ATTEMPT TO MISLEAD TO DEPARTMENT AND EVADE TAX BY CLAIMING INDEXING COST FROM SURRENDERED PRICE OF TENANCY RIGHTS. 4. WE AGREE WITH LD. AR THAT CLAIM OF ASSESSEE TO C LAIM INDEXED COST FROM SURRENDERED PRICE OF TENANCY RIGHTS RECEIVED B Y HER IS NOT ALLOWABLE AS PER PROVISIONS OF SEC.55(2) OF THE I.T. ACT. HOWEVE R, IT IS A FACT THAT ASSESSEE DISCLOSED ALL THE RELEVANT FACTS AND CONTENTION OF LD DR THAT SHE CLAIMED THE SAID INDEXED COST FROM SURRENDERED TENANCY RIGHTS O N THE BASIS OF AN ADVICE RECEIVED CANNOT BE DOUBTED IT, PARTICULARLY WHEN SH E IS AN OLD LADY OF ABOUT 85 YEARS. WE ARE OF THE CONSIDERED VIEW THAT DECIS ION OF HONBLE APEX COURT IN THE CASE OF RELIANCE PETRO PRODUCTS LTD (SUPRA) IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE BEFORE US. BESIDES, SPECIL BENCH OF AHMEDABAD TRIBUNAL IN THE CASE OF GUJARAT CREDIT CORPN. LTD. VS ACIT 302 ITR (AT) 250 HELD THAT IF ITA NO. 1830/M/2010 3 THE ASSESSEE IS NOT ABLE TO SUBSTANTIATE THE CLAIM OF EXPENDITURE, IT DOES NOT AMOUNT TO CONCEALMENT OF INCOME OR FURNISHING OF IN ACCURATE PARTICULARS OF INCOME. FURTHER, HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS INDIAN BISLERI 158 CTR 323 HELD THAT THE MERE FACT THAT CERTAIN CLAIM IS DISALLOWED, IT DOES NOT FOLLOW THAT ASSESSEE HAD CONCEALED ANY INCOME. CONSIDERING THE ABOVE DECISIONS AND THE FACTS BEFORE US, WE HOLD TH AT LEVY OF PENALTY ON THE FACTS AND CIRCUMSTANCES OF THE CASE ARE NOT JUSTIFI ED. HENCE WE DELETE THE PENALTY BY ALLOWING THE APPEAL TAKEN BY ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 18 TH DAY OF NOVEMBER, 2011 SD/- SD/- ( P.M. JAGTAP) (B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 18 TH NOVEMBER, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR I BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI