Smt. Daxaben Anilkumar Thakkar, Baroda V. The DCIT, Central Circle-2, Baroda

ITA 1936/AHD/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2905 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 12-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Sale consideration of property below Jantri Value; Fair market value; Set aside
• Section: 271(1)(c); 143(3); 50C; 153A; 48

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL , C BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS MADHUMITA ROY , JUDICIAL MEMBER ./ ITA NO. 1936/AHD/2018 / ASSTT. YEAR: 2009 - 2010 SMT DAXABEN ANILKUMAR THAKKAR , 55, GANDHI G UNJ , NEAR BORSAD BUS STAND , BORSAD - 388540 . PAN : AAQPT3444B VS. D.C.I.T. , CENTRAL CIRCLE - 2 , BARODA . (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : MS URVASHI SHODHAN , A.R REVENUE BY : SHRI L.P. JAIN , SR.D. R / DATE OF HEARING : 06 / 02 / 2020 / DATE OF PRONOUNCEMENT: 04 / 03 /2020 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE A GAINST THE ORDER OF THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) - 12 , AHMEDABAD , DATED 13/07/2018 ( IN SHORT LD. CIT (A) ) ARISING IN THE MATTER OF ASSESSMENT O RDER PASSED UNDER S.153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') DT.17 / 03/2015 RELEVANT TO THE ASSESSMENT YEAR 2009 - 20 10 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. ITA NO.1936/AHD/2018 ASSTT. YEAR 2009 - 10 2 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING ACTION OF AO LEVYING PENALTY OF RS.18,000/ - INVOKING PROVISIONS OF S EC 271(1)(C) OF THE ACT. LD.CIT( A) OUGHT TO HAVE DELETED PENALTY LEVIED BY AO WHEN APPELLANT NEITHER CONCEALED INCOME NO FURNISHED INACCURATE PARTICULARS OF INCOME. 2. LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING PENA LTY LEVIED BY AO ON DEEMED ADDITION OF RS.3,26,600/ - MADE U/S.50C OF THE ACT ON SALE OF DISPUTED LAND RESOLD TO SELLERS AT RATE AS PER TH E COURT SETTLEMENT. 2. THE FIRST ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THE LEV Y OF PENALTY OF RS. 18,000/ - UNDER THE PROVISION OF SECTION 271(1)(C) OF THE ACT . 3. THE BRIEF FACT IS THAT THE ASSESSEE IS AN INDIVIDUAL AND EARNING INCOME FROM BUSINESS AND OTHER SOURCE. THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION DECLARED INCOME OF RS. 540 / - IN THE RETURN FILED U/S 153A OF THE ACT. T HE AO DURING THE ASSESSMENT PROCEEDINGS HAS MADE THE ADDITION FOR RS. 3,26,600.00 REPRESENTING THE AMOUNT OF DIFFERENCE BETWEEN THE STAMP VALUE AND THE ACTUAL VALUE OF THE SALE CONSIDERATION SHOWN BY T HE ASSESSEE. THE AO ALSO INITIATED THE PENALTY PROCEEDING UNDER SECTION 271(1)(C) OF THE ACT, FOR CONCEALMENT OF INCOME. 3.1 IN RESPONSE , THE ASSESSEE SUBMITTED THAT HE HAS NOT RECEIVED ANYTHING OVER AND ABOVE THE SALE CONSIDERATION RECEIVED. HENCE THERE IS NO ANY CONCEALMENT OF INCOME. ACCORDINGLY THE ASSESSEE CLAIMED HE HAS NOT CONCEALED INCOME AND THERE SHOULD NOT BE PENALTY FOR ADDITION MADE UNDER DEEMING PROVISION. THE ASSESSEE IN THIS RESPECT PLACED HIS RELIANCE ON THE JUDGMENT OF THIS ITAT IN THE CASE OF SHREE CHIMANLAL MANILAL PATEL BEARING ITA NO. 508/AHD/2010. 3.2 HOWEVER THE AO DISAGREED WITH THE CONTENTION BY OBSERVING THAT THE LAN D WAS TRANSFERRED AT LESS THAN J ANTRI RATE. HENCE THE SAME AMOUNT TO CONCEALMENT O F INCOME. FURTHER IF THE PROCEEDING U/S 153A W OULD NOT HAVE BEEN CARRIED OUT THEN THE SAME SHOULD HAVE ESCAPED FROM TAX. ACCORDINGLY THE AO LEVIED THE PENALTY OF ITA NO.1936/AHD/2018 ASSTT. YEAR 2009 - 10 3 RS. 17,952/ - BEING 100% OF TAX SOUGHT TO BE EVADED ROUNDED OFF AT RS. 18,000/ - ONLY . 4. AGGR IEVED ASSESSEE PREFERRED AN APPEAL BEFORE THE LEARNED CIT (A) BUT NO SUCCESS. BEING AGGRIEVED BY THE ORDER OF THE OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US 5 . THE LEARNED AR BEFORE US SUBMITTED THAT THERE CANNOT BE ANY PENALTY FOR THE ADDITION MADE UNDER DEEMING PROVISIONS AS SPECIFIED UNDER SECTION 50C OF THE ACT. 6 . ON THE OTHER HAND THE LEARNED DR SUPPORTED THE ORDER OF THE AUTHORITY BELOW . 7 . WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAI LABLE ON RECORD. THE FACTS OF CASE HAS BEEN ALREADY SUMMARIZED IN ABOVE PARAGRAPH . T HEREFORE WE ARE NOT INCLINED TO REPRODUCE THE SAME FOR THE SAKE OF BREVITY AND CONVENIENCE. T HE ISSUE ARISES FOR OUR ADJUDICATION IS WHETHER IN GIVEN FACT AND CIRCUMSTANCES , THE ADDITION MADE UNDER SECTION 50C ON ACCOUNT OF DIFFERENCE IN ACTUAL CONSIDERATION AND JANTRI VALUE AM OUNT TO CONCEALMENT OF INCOME. IN OUR CONSIDERED VIEW THE ANSWER IS IN NEGATIVE. AS SUCH THERE IS NO ANY FINDING BY THE AUTHORITIES BELOW THAT THE ASS ESSEE HAS RECEIVED SALES CONSIDERATION OVER AND ABOVE THE AMOUNT DECLARED BY HIM. INDEED THE SALE CONSIDERATION WAS AGREED BETWEEN PART IES OUT OF COURT SETTLEMENT WHICH WAS APPROVED BY THE COURT. THEREFORE IN ABSENCE OF ANY FINDING THAT THE ASSESSEE HAS RE CEIVED SALES CONSIDERATION IN EXCESS OF DOCUMENTED PRICE , T HE ASSESSEE SHOULD NOT BE VISITED WITH THE PENALTY FOR THE ADDITION UNDER DEEMING PROVISION. IN THIS REGARD WE ALSO FIND SUPPORT AND GUIDANCE FROM THE ORDER OF HON BLE JURISDICTIONAL HIGH COURT IN CASE OF PCIT VS. SUN ON PEAK HOTEL (P.) LTD. REPORTED IN 95 TAXMANN.COM 320 WHERE IN SIMILAR FACTS AND CIRCUMSTANCES THE HON BLE COURT HELD AS UNDER: ITA NO.1936/AHD/2018 ASSTT. YEAR 2009 - 10 4 11. AS IS WELL SETTLED, CAPITAL GAIN CAN BE LEVIED ON ACTUAL SALE CONSIDERATION AND NOT ON FAIR MARKET VALUE. SUB - SECTION [1] OF SECTION 50C OF THE ACT MAKES A DEVIATION IN THIS PRINCIPLE AND INTRODUCES A CONCEPT OF DEEMED CONSIDERATION FOR THE PURPOSE OF SECTION 48 OF THE ACT. THERE IS THUS A CLEAR DISTINCTION BETWEEN SALE CONSIDERATION ACTUALLY RECEIVED AND DEEMED TO HAVE BEEN RECEIVED IN TERMS OF SUB - SECTION [1] OF SECTION 50C OF THE ACT. APPLICATION OF SUB - SECTION [1] OF SECTION 50C THEREFORE CANNOT AUTOMATICALLY GIVE RISE TO PENALTY PROCEEDINGS. IN VIEW OF THE ABOVE AN D AFTER CONSIDERING THE FACTS IN TOTALITY WE SET ASIDE THE ORDER OF THE LEARNED CIT (A) AND DIRECT THE AO TO DELETE THE PENALTY IMPOSED BY HIM . HENCE THE GROUND OF APPEAL OF THE ASSESSEE ALLOWED. 8 . IN THE RESULT APPEAL OF THE ASSESSEE ALLOWED. O RDER PRONOUNCED IN THE COURT ON 04 /03 / 2020 AT AHMEDABAD. - SD - - SD - (MADHUMITA ROY ) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER ( TRUE COPY) A HMEDABAD; DATED 04 / 03 /2020 MANISH