Ranjit A Joshi, Ahmedabad V. ACIT, Circle-5(2), Ahmedabad

ITA 1970/AHD/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6212 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 18-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value
• Section: 271(1)(c); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ( THROUGH VIRTUAL COURT ) ITA. NO: 1970/AHD/2018 (ASSESSMENT YEAR: 2014-15) RANJIT A JOSHI, CHINUBHAI CHAMBERS, OLD LATI BAZAR, KAGDAPITH, AHMEDABAD V/S A.C.I.T. CIRCLE-5(2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ABSPJ8123C APPELLANT BY : NONE RESPONDENT BY : SHRI VIDHYUT TRIVEDI, SR. DR. ( )/ ORDER DATE OF HEARING : 03 -09-2020 DATE OF PRONOUNCEMENT : 15-09-2020 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) FOR IMPOSING OF PENALTY U/S 271(1)(C) ARISING OUT OF PENALTY ORDER DATED 28.06.2017. ITA NO. 1970/AHD/2018 . A.Y. 2014-15 2 2. FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS SEEN THAT ASSESSE HAD SOLD IMMOVABLE PROPERTY SITUATED AT BOPAL FOR RS. 61,00,000/-. THE APPELLANT HAS DECLARED SHORT TERM CAPITAL GAIN OF RS. 18,72,050/- ON THE SALE. DETAILS IN THIS REGARD WERE CALLED FOR AND ON PERUSAL OF SALE DEED, LD. A.O. NOTICED THAT STAMP DUTY PAID ON SALE OF IMMOVABLE PROPERTY WAS RS. 3,36,000/- AND THEREFORE, THE STAMP DUTY VALUE OF LAND SOLD COMES TO RS. 68,57,142/-. THUS THE SALE CONSIDERATION DECLARED BY THE APPELLANT IS LESS BY RS. 7,57,142/- AS COMPARED TO THE STAMP DUTY VALUE OF THE PROPERTY. THEREFORE, PROVISION OF SECTION 50C IS APPLICABLE IN THE PRESENT CASE AND HENCE THE DIFFERENCE OF SALE CONSIDERATION AND VALUE AS PER STAMP DUTY VALUATION OF RS. 7,52,142/- WAS ADDED TO THE TOTAL INCOME OF THE APPELLANT. AND THEREAFTER SIMILAR AMOUNT OF PENALTY WAS IMPOSED BY THE LD. A.O. 3. THEREAFTER ASSESSE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHICH WAS FILED THE APPEAL DELAYED BY 111 DAYS. FOR DELAYED FILING OF APPEAL, APPELLANT CONTENDED BEFORE THE LD. CIT(A) THAT MOTHER OF THE COUNSEL WAS NOT WELL AND ON ACCOUNT OF BRAIN SURGERY, SHE WAS HOSPITALIZED AND FINALLY PASSED AWAY. THE LD. CIT(A) DID NOT AGREE WITH THE PLEA OF THE APPELLANT AND REFUSE TO CONDONE THE DELAY AND DISMISSED THE APPEAL ON TECHNICAL GROUND. THUS CONFIRMED THE PENALTY IMPOSED BY THE LD. A.O. IN OUR CONSIDERED OPINION, LD. CIT(A) SHOULD HAVE SYMPATHETICALLY CONSIDERED THE PLEA OF THE LD. A.R BECAUSE LD. A.R. MOTHER HAD UNDERGONE FOR BRAIN SURGERY AND ULTIMATELY PASSED AWAY. IN CASE OF DEATH AUTHORITY SHOULD HAVE SYMPATHETIC APPROACH. THUS, WE ACCEPT PLEA OF THE ASSESSE AND CONDONE THE DELAY. ITA NO. 1970/AHD/2018 . A.Y. 2014-15 3 4. NOW APPELLANT HAS COME BEFORE US BY WAY OF SECOND STATUTORY APPEAL. 5. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGNED ORDER. THIS IS A CASE OF DIFFERENCE OF ACTUAL SALE PRICE PROPERTY AND VALUATION OF PROPERTY AS PER STAMP DUTY VALUATION AND SAME DIFFERENCES OF RS. 7,57,142/-. AS WE CAN SEE, THE ADDITION MADE ON ACCOUNT OF SHORT TERM CAPITAL GAIN WAS U/S 50C, AS A RESULT OF THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY FOR STAMP DUTY PURPOSE. HOWEVER, AS FAR AS IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS CONCERNED, THE ASSESSING OFFICER HAS TO PROVE THE FACT THAT THE ASSESSE HAS ACTUALLY RECEIVED AS SALE CONSIDERATION, THE SAME AMOUNT DETERMINED BY STAMP DUTY AUTHORITY AND IN OUR OPINION DIFFERENCE OF SALE CONSIDERATION AS PER STAMP DUTY IS NOTIONAL. 6. EVEN LD. CIT(A) DID NOT DECIDE MATTER ON MERIT AS CONTEMPLATED IN SECTION 250(6) OF THE INCOME TAX ACT. THE LD. CIT(A) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINT FOR DETERMINATION, THE DECISION THEREON AND REASON FOR THE DECISION. IN THE PRESENT CASE, LD. CIT(A) DID NOT DEALT THE MATTER ON MERIT AND SAME IS AMOUNT TO MISCARRIAGE OF JUSTICE. 7. MERELY BECAUSE THE ADDITION WAS MADE BY APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT ON THE BASIS OF VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY, THE ASSESSEE CANNOT BE SADDLED WITH PENALTY U/S 271(1)(C) OF THE ACT EITHER FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME OR FOR CONCEALMENT OF INCOME. THUS, WE DELETE THE PENALTY IMPOSED AND CONFIRMED BY THE LOWER AUTHORITIES. ITA NO. 1970/AHD/2018 . A.Y. 2014-15 4 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 15 - 09- 2020 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 15/09/2020 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD