Assistant Commissioner of Income-tax, Pune V. Manoj Himmatlal Shah, Pune

ITA 1928/PUN/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8502 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 31-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B C MALAKAR
• Keywords: Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1928/PN/2013 (A.Y:2006-07) ACIT, CIRCLE 5, PUNE APPELLANT VS. MANOJ HIMMATLAL SHAH RESPONDENT 125, BHAWANI PETH, NEW TIMBER MARKET, PUNE - 411042 PAN: ACMPS4482L APPELLANT BY : SHRI M.K.KULKARNI RESPONDENT BY : SHRI B.C.MALAKAR DATE OF HEARING : 30.09.2014 DATE OF PRONOUNCEMENT : 30.09.2014 ORDER PER SHAILENDRA KUMAR YADAV : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE CIT(A) ON FOLLOWING GROUNDS. 1. THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A PPEALS) IS CONTRARY TO THE LAW AND FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN LAW AND ON FACTS BY DELETING PENALTY LEVIED U/S 271 (1)( C) OF THE INCOME TAX ACT, 1961. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE UPHELD THE PENALTY ORDER OF THE ASSESSING OFFICER B Y CONFIRMING PENALTY LEVIED U/S 271(1)(C ) OF THE I.T .ACT, 1961 FOR FURNISHING INACCURATE PARTICULARS. ITA NO.1928/PN/13 MANOJ HIMMATLAL SHAH 4. FOR THESE AND SUCH ABOVE OTHER GROUNDS AS MAY BE UR GED AT THE TIME OF THE HEARING, THE ORDER OF THE LD.CIT (A PPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RES TORED. 5. THE APPELLANT CRAVES, LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUND OF APPEAL DURING THE COURSE OF THE APPELLANT PROCEEDINGS BEFORE THE ITAT. 2. THE ASSESSING OFFICER IMPOSED PENALTY OF RS.7,00 ,000/- UNDER PROVISION OF SEC.271(1)(C). THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTION S WERE RAISED ON BEHALF OF ASSESSEE AND CIT(A) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE B Y THE LEARNED COUNSEL FOR THE APPELLANT WITH REFERENCE TO THE FACTS OF THE CASE AND MATERIAL AVAILABLE ON RECORD. AT THE O UTSET, IT MAY BE MENTIONED THAT SIMILAR ISSUE INVOLVING THE S AME FACTUAL BACKGROUND WAS DEALT WITH MY LD. PREDECESSO R IN THE CASE OF THE BROTHER OF THE APPELLANT NAMELY, SHRI R AHUL HIMMATLAL SHAH WHILE ADJUDICATING THE APPEAL FILED BY HIM FOR THE SAME ASSESSMENT YEAR. IN THE SAID CASE AFTER C ONSIDERING THE FACTUAL MATRIX AND LEGALITY OF THE ISSUES INVOL VED IN THE CASE. IT WAS HELD BY MY LD. PREDECESSOR IN THE APP EALLATE ORDER DATED 05/11/2012 PASSED IN ITA NO. PN/CIT(A) III/ACIT CIR.-5,PN/60/2011-12 THAT THE FACTS OF THE CASE WERE NEITHER COVERED UNDER THE MAIN PROVISIONS OF SEC.27 1(1)(C) NOR UNDER THE DEEMING PROVISIONS AS CONTAINED IN EXPLAN ATION 1 THERETO. AS ALREADY MENTIONED, THE FACTUAL CIRCUMS TANCES IN THE PRESENT CASE ARE GERMANE TO THE SAME SET OF FAC TS AND SEQUENCE OF EVENTS AND THEREFORE, I AM OF THE CONSI DERED VIEW THAT THE VIEW TAKEN BY MY LD. PREDECESSOR ON THE IS SUE IN THE CASE OF THE BROTHER OF THE APPELLANT, TO WHICH I AM IN FULL AGREEMENT WITH, WOULD EQUALLY BE APPLICABLE TO THE FACTS OF THE PRESENT CASE TOO. ACCORDINGLY, IT IS HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN IMPOSING PEN ALTY U/S.271(1)(C) OF THE I.T.ACT IN THE PRESENT CASE. THE PENALTY LEVIED OF RS.7,00,000/- IS THEREFORE, DELETED. 2.1 THUS THE CIT(A) FOLLOWING ORDER IN THE CASE OF RAHUL HIMMATLAL SHAH, BROTHER OF ASSESSEE IN ITA NO. PN/C IT(A) ITA NO.1928/PN/13 MANOJ HIMMATLAL SHAH III/ACIT CIR.-5,PN/60/2011-12 DATED 05/11/2012 AS D ISCUSSED ABOVE DECIDED APPEAL IN FAVOUR OF THE ASSESSEE. IT WAS POINTED OUT THAT ITA B BENCH IN ITA NO.1300/PN/13 FOR A.Y.2006- 07 IN RAHUL HIMMATLAL SHAH HAS DISMISSED REVENUES APPEAL BY HO LDING AS UNDER. 5.1 WE FIND THE ASSESSEE IN THE INSTANT CASE HAS F URNISHED THE FULL PARTICULARS OF HIS INCOME. MERELY BECAUSE THE ASSESSING OFFICER DOES NOT AGREE WITH THE VALUATION ADOPTED BY THE ASSESSING OFFICER, THAT IN OUR OPINION MAY B E JUSTIFIED FOR MAKING THE ADDITION, BUT THE SAME IN OUR OPINIO N DOES NOT CALL FOR LEVY OF PENALTY U/S.271(1)(C) OF THE I.T. ACT. SINCE THE ASSESSEE HAS ADOPTED THE RATE ON THE BASIS OF THE V ALUATION REPORT GIVEN BY A GOVERNMENT VALUER WHICH HAS NOT B EEN ACCEPTED BY THE ASSESSING OFFICER WHO RELIED ON THE VALUATION REPORT BY THE DVO, WHO IN TURN HAS VALUED THE PROPE RTY ON THE BASIS OF READY RECKONER RATE, THEREFORE, IN OUR OPINION, IT CANNOT BE SAID THAT THE PARTICULARS OF INCOME FURNI SHED BY THE ASSESSEE WERE INACCURATE OR THAT HE CONCEALED THE P ARTICULARS OF HIS INCOME. UNDER THESE CIRCUMSTANCES, WE ARE O F THE CONSIDERED OPINION THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY U/S.271(1)(C) OF THE I.T. ACT. IN THIS VIEW OF THE MATTER AND IN VIEW OF THE DETAILED REASONING GIVEN BY THE LD.CIT( A) ON THIS ISSUE INCLUDING THE VARIOUS DECISIONS RELIED ON BY HIM WE FIND NO INFIRMITY IN THE SAME. ACCORDINGLY WE UPHOLD TH E ORDER OF THE CIT(A) CANCELLING THE PENALTY. THE GROUNDS RAI SED BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 2.2 NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE. FACTS BEING SIMILAR SO FOLLOWING THE SAME REASONING WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF CIT(A) WHO HAS DELETE D THE PENALTY LEVIED U/S. 271(C) OF THE ACT SAME IS UPHELD. ITA NO.1928/PN/13 MANOJ HIMMATLAL SHAH 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF SEPTEMBER, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED THE 30 TH SEPTEMBER, 2014 ASHWINI COPY TO:- 1) ASSESSEE 2) THE DEPARTMENT 3) THE CIT(A)-III, PUNE 4) THE CCIT-II, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, PUNE.