Yogita Jain, CHENNAI V. ITO, CHENNAI

ITA 1842/CHNY/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3846 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: S SRIDHAR
• Keywords: Business income; Salary income

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . , ! ' . # , % & BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICI AL MEMBER ./ I.T.A.NO.1842/MDS/2016 ( / ASSESSMENT YEAR: 2009-10) MRS. YOGITA JAIN, 14, G.N.CHETTY ROAD, T.NAGAR, CHENNAI-600 017. VS THE INCOME TAX OFFICER, NON-CORPORATE WARD-2(1), CHENNAI-34. PAN: AAQPY2070E ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. S.SRIDHAR, ADVOCATE /RESPONDENT BY : MR. A.V.SREEKANTH, JCIT /DATE OF HEARING : 15 TH SEPTEMBER, 2016 /DATE OF PRONOUNCEMENT : 2 ND DECEMBER, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)- 2, CHENNAI DATED 31.03.2016 IN ITA NO.280/CIT (A) -2/2013- 14 PASSED UNDER SECTION 271(1)(C) R.W.S. 250(6) OF THE ACT. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN HER APPEAL, HOWEVER, THE CRUX OF THE ISSUE IS AS FOLLOW S:- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE PENALTY AMOUNTING TO ` 5,26,639/- LEVIED BY THE LEARNED ASSESSING OFFICER TOWARDS CONCEALMENT OF INCOME. 2 ITA NO.1842/MDS/2016 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL EARNING SALARY INCOME, BUSINESS INCOME A ND CAPITAL GAINS AND INCOME FROM OTHER SOURCES, FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 08.01. 2010 ADMITTING TOTAL INCOME OF ` 5,77,860/-. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) WAS IS SUED TO THE ASSESSEE ON 23.08.2010. DURING THE COURSE OF ASSESS MENT PROCEEDINGS, IT WAS OBSERVED BY THE LEARNED ASSESSI NG OFFICER THAT THE ASSESSEE HAD SOLD A PROPERTY ON 10 .02.2009 MEASURING 41 CENTS AT SURVEY NO.2/3, 115 SEMBULIVAR AM VILLAGE FOR A SALE CONSIDERATION OF RS.22,55,000/- WHICH WAS NOT DISCLOSED IN HER RETURN OF INCOME. WHEN QUERIED , THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THE DET AILS OF THE PROPERTY SOLD AND WORKED OUT THE PROFIT ON SALE OF THE LAND AT RS.17,63,000/-. THE LEARNED ASSESSING OFFICER AD DED THE SAME TO THE INCOME OF THE ASSESSEE AND ALSO INITIAT ED PENALTY PROCEEDINGS. IN THE PENALTY PROCEEDINGS, THE LEARNE D AUTHORIZED REPRESENTATIVE HAD SUBMITTED AS FOLLOWS: - 3 ITA NO.1842/MDS/2016 I) THE ASSESSEE AND THE ACCOUNTANT WERE UNDER THE BONAFIDE IMPRESSION THAT PURCHASE & SALE PRICE OF THE PROPERTY SOLD WAS THE SAME AND THEREFORE THE QUESTION OF CAPITAL GAIN WOULD NOT ARISE. II) THAT THE ASSESSEE WAS NOT AWARE OF THE PROVISIONS OF THE ACT WITH REGARD TO CAPITAL GAIN. III) THERE WAS NO MENS REA IN CONCEALING THE INCOME OF THE ASSESSEE. HOWEVER, THE LEARNED ASSESSING OFFICER REJECTED TH E ABOVE SUBMISSIONS OF THE ASSESSEE AND LEVIED MINIMUM PENA LTY OF RS.5,26,639/-. 4. ON APPEAL, THE LEARNED AUTHORIZED REPRESENTATIVE REITERATED THE SUBMISSIONS MADE BEFORE THE LEARNED ASSESSING OFFICER AND PLEADED FOR DELETING THE PENA LTY LEVIED. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) RE LYING ON THE VARIOUS DECISIONS CITED IN HIS ORDER CONFIRM ED THE PENALTY LEVIED BY THE LEARNED ASSESSING OFFICER ACC EPTING HIS VIEW. 4 ITA NO.1842/MDS/2016 5. BEFORE US, THE LEARNED AUTHORIZED REPRESENTATIVE PRODUCED THE SALE DEED DATED FEBRUARY, 2009 WHEREIN IN THE SCHEDULE OF PROPERTIES, IT WAS MENTIONED THAT THE L AND SOLD WAS DRY AGRICULTURAL LAND. HE FURTHER ARGUED STATIN G THAT THE TAX CONSULTANT OF THE ASSESSEE WAS UNDER THE BONAFI DE BELIEF THAT THE LAND SOLD BY THE ASSESSEE IS AGRICULTURAL LAND AND THEREFORE IT WILL NOT ATTRACT CAPITAL GAIN TAX, HEN CE THE SAME WAS NOT DISCLOSED IN THE RETURN OF INCOME. IT WAS T HEREFORE REQUESTED THAT THE PENALTY LEVIED BY THE LEARNED AS SESSING OFFICER MAY BE DELETED. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE O THER HAND, ARGUED IN SUPPORT OF THE ORDERS OF THE REVENU E BUT COULD NOT SUCCESSFULLY CONTROVERT TO THE SUBMISSION S OF THE LD.A.R. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD. WE FIND MERIT IN T HE SUBMISSION OF THE LEARNED AUTHORIZED REPRESENTATIVE . THE SALE DEED REFERRED BY THE LEARNED ASSESSING OFFICER REVEALS THAT THE LAND SOLD BY THE ASSESSEE IS CLASSIFIED AS DRY 5 ITA NO.1842/MDS/2016 AGRICULTURAL LAND. THIS ASPECT WAS NOT CONSIDERED B Y THE LEARNED ASSESSING OFFICER AT THE TIME OF ASSESSMENT AND THE PENALTY PROCEEDINGS, PROBABLY BECAUSE THE ASSESSEE HAD FAILED TO PRODUCE THE SAME ON THE EARLIER OCCASIONS BEFORE THE REVENUE AUTHORITIES. CONSIDERING THESE FACTS AN D CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE PENALTY LEVIED BY THE LEARNED ASSESSING OFFICER DESERVES TO BE DELETED BECAUSE THE ASSESSEE HAD A FAIR CHANC E TO SUCCEED IN HER PRAYER, BUT DUE TO HER IGNORANCE, SH E HAS FAILED TO FURNISH THE REQUISITE PARTICULARS BEFORE THE REVENUE AUTHORITIES AT THE TIME OF ASSESSMENT PROCEEDINGS A ND PENALTY PROCEEDINGS WHICH RESULTED IN THE ADDITION AND LEVY OF PENALTY. THEREFORE, WE HEREBY DIRECT THE LEARNED AS SESSING OFFICER TO DELETE THE PENALTY OF RS. 5,26,639/- LEV IED BY HIM WHICH WAS FURTHER SUSTAINED BY THE LD.CIT(A). 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 2 ND DECEMBER , 2016 SD/- SD/- ( ! ' . # ) ( . ) ( DUVVURU RL REDDY ) ( A. MOHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, 6 ITA NO.1842/MDS/2016 ( /DATED 2 ND DECEMBER, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF