Shri Pradipkumar K. Patel, Anand V. The Income Tax Officer, Ward-1, Anand

ITA 1894/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8145 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MILAN MEHTA
• Keywords: Revised return; Bonafide mistake
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHRI PRADIPKUMAR K. PATEL, 4, PATEL PARK, ANAND VIDHYANAGAR ROAD, B/H, VRUDAVAN SOCIETY, ANAND, PAN: AESPP6897A (APPELLANT) VS THE ITO, WARD - 1, 2 ND FLOOR, S.P. COMPLEX, BESIDE C.K. HALL, ANAND (RESPONDENT) REVENUE BY : S H RI MUDIT NAGPAL , SR. D . R. ASSESSEE BY: S H RI MILAN MEHTA , A.R. DATE OF HEARING : 15 - 11 - 2 017 DATE OF PRONOUNCEMENT : 22 - 11 - 2 017 / ORDER P ER : AMARJ IT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2009 - 10 , AR I SES FROM ORDER OF THE CIT(A) - I, BARODA DATED 03 - 03 - 2014 , IN PROCEEDINGS UNDER SECTION 271(1 ) (C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLL OWING GROUND OF APPEAL: - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I, BARODA ['THE CIT(A)'] ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF INCOME I T A NO . 1894 / A HD/20 14 A SSESSMENT YEAR 200 9 - 10 I.T.A NO. 1894 /AHD/20 14 A.Y. 2009 - 10 PAGE NO SHRI PRADIPKUMAR K. PATEL VS. ITO 2 TAX OFFICER, WARD - 1, ANAND ('THE AO') IN LEVYING PE NALTY OF RS.8,62,043/ - U/S 271(1 ) (C) OF THE INCOME TAX ACT, 1961 ('THE ACT'). 3. THE BRIEF FACT OF THE CASE IS AS UNDER. IN THIS CASE, RETURN OF INCOME DECLARING INCOME OF RS. 1,77,940/ - WAS FILED ON 30 TH SEPTEMBER, 2009. SUBSEQUENTLY, THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUING O F NOTICE U/S. 143(2) OF THE ACT ON 2 0 TH AUGUST, 2010. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT ASSESSE HAS SOLD A LAND. THE LAND WAS PURCHASED ON 12 TH SEPTEMBER, 2005 FOR RS. 1,05,235/ - AND WAS SOLD ON 15 TH SEPTE MBER, 200 8 FOR A SALE CONSIDERATION OF RS . 70 LACS. THE ASSESSING OFFICER HAS OBTAINED INFORMATION FROM THE SUB - REGISTRAR U/S. 133(6) STATING THAT AS PER J ANTRY RATE THE VALU E OF THE LAND WAS RS. 78 , 18 , 000/ - . SINCE THE ASSESSEE WAS HAVING 50% OWNERS HIP IN THE SOLD LAND, THEREFORE, THE SHARE OF THE ASSESSE IN THE SAID SALE CONSIDERATION WAS DETERMINED AT RS . 39, 0 9 , 000/ - . ON PERUSAL OF THE RETURN FILED BY THE ASSESSEE IT WAS NOTICED THAT THE ASSESSEE HAS NOT SHOWN ANY CAPITAL GAIN ON THE SALE OF T HE AFORESAID LAND IN HIS RETURN OF INCOME . THEREFORE, THE EXPLANATION OF THE ASSESSEE WAS CALLED FOR. THE ASSESSEE HAS STATED THAT T HI S CAPITAL GAIN WAS REMAINED TO BE OFFERED FOR TAXATION IN RETURN OF INCOME FILED BY HIS ACCOUNTANT . HE FURTHER STA TED THAT DURING THAT PERIOD HE WAS ON E MEDICAL TREATMENT. CONSEQUENTLY, T HE ASSESSING OFFICER HAD ADDED THE AFORESAID CAPITAL GA IN TO THE TOTAL INCOME OF THE ASSESSEE ON WHICH P ENALTY PROCEEDINGS U/S. 271(1)(C) WAS ALSO INITIATED . DURING T HE COURSE O F PENALTY PROCEEDINGS THE AS S ESSEE HAS RE TREATED THE SAME SUBMISSION WHICH WAS MADE AT THE TIME OF ASSESSMENT PROCEEDINGS. I.T.A NO. 1894 /AHD/20 14 A.Y. 2009 - 10 PAGE NO SHRI PRADIPKUMAR K. PATEL VS. ITO 3 IT IS ALSO STATED BY THE ASSESSEE DURING THE COURSE OF PENALTY PROCEEDINGS THAT HE HAS ADMITTED NON - DISCLOSURE OF AFORESAID INCOME AT HIS OWN WHICH IS NOT CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE ASSESSING OFFICER OBSERVED HAD THE CASE OF THE ASSESSEE WAS NOT TAKEN UNDER SCRUTINY , THE ASSESSEE WOULD NOT HAVE SHOWN THE INCOME FROM CAPITAL GAIN. TH EREFORE, THE ASSESSING OFFICER HAS CONCLUDED T H AT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME, THEREFORE , HE LEVIED PENALTY OF RS. 8,62,043/ - . 4. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS SUSTAINED THE PENALTY LEVIED BY THE ASSESSING OFFICER BY OBSERVING AS UNDER: - 5. THE ORDER U/S 271(1)(C) OF THE ACT OF THE AO AS WELL AS ABOVE ENTIRE SUBMISSION OF AR OF THE APPELLANT HAVE BEEN CONSIDERED. THE AR OF THE APPELLANT IN HIS SUBMISSION DATED 11/02/2014 AS REPRODUCE D IN PRECEDING PARAGRAPHS OF THIS APPELLATE ORDER HAS MAINLY STATED THAT THE MISTAKE OF THE APPELLANT WAS INADVERTENT AND NOT PURPOSEFUL. AS PER THE AR THE RETURN OF INCOME OF THE APPELLANT WAS FILED BY HIS ACCOUNTANT AS THE APPELLANT WAS UNDER MEDICAL TRE ATMENT DURING THE PERIOD. AS PER THE AR THE ACCOUNTANT WAS NOT AWARE ABOUT SUCH LAND TRANSACTION AND THEREFORE THE INCOME ARISING FROM SALE OF LAND WAS NOT OFFERED TO TAX. IT IS SUBMITTED BY THE AR THAT THE APPELLANT CAME TO KNOW ABOUT HIS LAND HOLDING DUR ING VERIFICATION OF RECORDS. AS PER THE A.R. AS SOON AS THE APPELLANT CAME TO KNOW ABOUT CAPITAL GAIN, HE HAD IMMEDIATELY OFFERED THE INCOME FOR TAXATION. THUS, AS PER THE AR THIS WAS A MISTAKE. AS PER THE AR THIS WAS A MISTAKE OF THE APPEL LANT WHICH WAS IMMEDIATELY ACCEPTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THUS, AS PER THE AR THIS WAS A CASE OF BONAFIDE MISTAKE. IN VIEW OF THIS, THE AR HAS REQUESTED TO DELETE THE PENALTY. THE AR HAS RELIED UPON DECISIONS OF VARIOUS HO N'BLE COURTS. BUT THIS ENTIRE SUBMISSION OF THE AR IS OF VERY GENERAL NATURE AND IS DEVOID OF ANY MERITS. FIRST OF ALL THE AR HAS NOT FURNISHED THE EVIDENCES AND DETAILS OF PERIOD DURING WHICH THE APPELLANT WAS UNDER MEDICAL TREATMENT. NO CERTIFICA TE OF THE DOCTOR IS ATTACHED. SECONDLY, IT WAS THE APPELLANT WHO WAS WELL AWARE OF THE PROFIT ARISEN ON ACCOUNT OF SALE OF THE LAND AND THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED WITH HIS SIGNATURE ONLY. IT CANNOT BE BELIEVED THAT THE PROFIT WAS NOT DISCLOSED BY THE APPELLANT IN THE RETURN OF INCOME DUE TO INADVERTENCE. MOREOVER, THE APPELLANT HAS NOT FILED EITHER ANY REVISED STATEMENT OR THE REVISED RETURN OF INCOME RECTIFYING SUCH SO CALLED INADVERTENT MISTAKE. IT WAS ON THE BASIS OF INFORMATION WHICH WAS COLLECTED BY THE DEPARTMENT FROM THE OFFICE OF SUB REGISTRAR I, ANAND U/S 136 THAT THE CASE OF THE APPELLANT WAS PICKED UP FOR SCRUTINY AND SUCH FACT WITH REGARD TO NON DISCLOSURE OF CAPITAL GAIN IN THE RETURN OF INCOME WAS POINTED O UT TO THE APPELLANT. THE CASE OF THE APPELLANT WAS SCRUTINIZED ON THE BASIS OF COPY OF SALE DEED OBTAINED FROM THE OFFICE SUB - REGISTRAR. THE FACT TO BE CONSIDERED IS THAT IF THE CASE OF THE APPELLANT WAS NOT PICKED UP FOR SCRUTINY ON THE BASIS OF INFORMATI ON COLLECTED BY THE AO, THE CAPITAL GAIN AS ARISEN ON ACCOUNT OF SALE OF LAND WOULD HAVE GOT ESCAPED FROM ASSESSMENT. CONSIDERING ALL THESE FACTS IT CAN BE SAID THAT, THE APPELLANT HAD CONCEALED THE PARTICULARS OF INCOME AND THEREFORE EXPLANATION 1 TO SEC TION 271(1)(C) OF IT ACT IS APPLICABLE IN ITS CASE. IN VIEW OF THIS IT IS HELD THAT THE AO HAS CORRECTLY LEVIED THE PENALTY OF RS. 8,62,043/ - U/S 271(1)(C) AND THEREFORE THE SAME IS CONFIRMED. THUS, THE GROUND OF APPEAL OF THE APPELLANT IS DISMISSED. I.T.A NO. 1894 /AHD/20 14 A.Y. 2009 - 10 PAGE NO SHRI PRADIPKUMAR K. PATEL VS. ITO 4 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD CAREFULLY. WE OBSERVED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS COLLECTED INFORMATION U/S. 133(6) OF THE ACT FROM THE REGISTRAR REGARD ING SALE OF LAND B Y THE AS SESSEE . O N VERIFICATION, THE ASSESSING OFFICER HAS NOTICED THAT ASSESSEE HAS NOT SHOWN THE INCOME FROM SALE OF LAND UNDER THE HEAD CAPITAL GAIN IN HIS RETURN OF INCOME FI L E D FOR THE YEAR UNDER CONSIDERATION. THE ASSESSEE COULD NOT EXPLAIN THE RE ASON FOR NOT SHOWING THE INCOME FROM THE CAPITAL GAIN SATISFACTORILY . EVEN THE ASSE SSEE HAS NOT FILED EVIDENCE AND PROOF THAT HE WAS UNDER MEDICAL TREATMENT NOR DEMONSTRATED ANY APP ROPRIATE CIRCUMSTANCES THAT WHY AFORESAID INCOME COULD NOT BE INCORPORATED IN THE RETUR N OF INCOME. WE HAVE FURTHER CONSIDERED THAT IT IS ONLY BECAUSE OF THE SCRUTINY ASSESSMENT AND INVESTIGATION A ND VERIFICATION CARRIED OUT BY T H E ASSESSING OFFICER FROM THE REGISTRAR THAT THE UNREPORTED INCOME COULD BE BROUGHT TO TAX IN T HE CASE OF THE ASS ESSEE. AFTER CONSIDER ING , THE ABOVE FACTS AND DETAILED FINDINGS OF T HE LD. CIT(A), WE DO NOT FIND ANY REASON TO INTERFERE IN THE DE CI SION OF THE LD. CIT(A). THEREFORE , THE APPEAL OF A S SESSEE IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 22 - 11 - 201 7 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 22 /11 /2017 I.T.A NO. 1894 /AHD/20 14 A.Y. 2009 - 10 PAGE NO SHRI PRADIPKUMAR K. PATEL VS. ITO 5 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,