SHRI KARIM KAMRUDDIN MALIK, Nagpur V. ITO, WARD-1(3), Nagpur

ITA 199/NAG/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9660 (ITAT-NAGPUR)
• Duration Of Justice: 4 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 30-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K P DEVANI SHRI A R NINAWE
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI P.K. BANSAL, VICE PRESIDENT AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO. 199/NAG./2013 ( ASSESSMENT YEAR : 200809 ) SHRI KARIM KAMRUDDIN MALIK KARIMABAD HOUSING SOCIETY FLAT NO.301, BYRAMJI TOWN OPP. POONAM CHAMBERS, CHHAONI NAGPUR 440 013 PAN ANFPM8213K APPELLANT V/S INCOME TAX OFFICER WARD1(3), NAGPUR .... RESPONDENT ASSESSEE BY : SHRI K.P. DEVANI REVENUE BY : SHRI A.R. NINAWE DATE OF HEARING 21.06.2017 DATE OF ORDER 30.06 .2017 O R D E R PER AMARJIT SINGH, J.M. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 18 TH MARCH 2013, PASSED BY THE LEARNED COMMISSIONER (APPEALS)I, NAGPUR, RELEVANT TO THE ASSESSMENT YEA R 200809. THE EFFECTIVE GROUND RAISED BY THE ASSESSEE IS REPRODUC ED BELOW: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED HONBLE COMMISSIONER OF INCOME TAX (APPEALS)II, WA S ARBITRARY AND UNJUSTIFIED IN CONFIRMING THE PENALTY LEVIED UN DER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF ` 2,77,180 ON 4 TH MARCH 2010. THE 2 SHRI KARIM KAMRUDDIN MALIK ORDER UNDER SECTION 143(3) OF THE ACT WAS PASSED ON 20 TH DECEMBER 2009. DURING THE YEAR OF ASSESSMENT THE ASSESSEE PU RCHASED LAND FROM THE FOLLOWING PERSONS: SR. NO. NAME & ADDRESS OF SELLER DESCRIPTION OF PROPERTY AMOUNT PAID FOR PURCHASE OF PROPERTY 1. SMT. GOPIKABAI YADAVRAO KHODANKAR, KONDHALI, TEH. KATOL DIST. NAGPUR SURVEY NO.31, ADMEASURING 3.77 H.R. AT MAUZA : SALAI (KHURD) KHURSAPAR, TAH. KATOL DIST. NAGPUR ` 4,35,000 2. SHRI ARUN YADVARAO KHODANKAR, KONDHALI, TEH. KATOL DIST. NAGPUR SURVEY NO.38, ADMEASURING 1.45 H.R. AT MAUZA : SALAI (KHURD) KHURSAPAR, TAH. KATOL DIST. NAGPUR ` 3,00,000 3. SMT. KUNTILABAI ARUNRAO KHODANKAR, KONDHALI, TEH. KATOL DIST. NAGPUR SURVEY NO.40, ADMEASURING 0.97 H.R. AT MAUZA : SALAI (KHURD) KHURSAPAR, TAH. KATOL DIST. NAGPUR ` 90,000 4. SHRI KIRITBHAI JIVRAJBHAI PATEL, SURYA NAGAR, NAGPUR SURVEY NO.30/2, ADMEASURING 1.62 H.R. AT MAUZA : SALAI (KHURD) KHURSAPAR, TAH. KATOL DIST. NAGPUR ` 3,00,000 3. THE REGISTERED VALUE SHOWN IN THE SALE DEED WAS VER Y LOW, THEREFORE, TO VERIFY THE GENUINENESS OF THE TRANSAC TIONS, THE SELLER WERE SUMMONED. ONE SELLER SHRI ARUN KHODANKAR WAS A PPEARED AND MADE THE STATEMENT BEFORE THE ASSESSING OFFICER TO THE EFFECT THAT HE RECEIVED THE AMOUNT OF ` 1,03,00,000, FOR THE ALIENATION OF THE LAND TO SHRI KARIM KAMRUDDIN MALIK, WHEREAS, THE ASSESSEE S HRI KARIM KAMRUDDIN MALIK, HAS SHOWN THE PAYMENT OF ` 30 LAKH. THE TRANSACTION WAS FOUND NOT GENUINE, THEREFORE, NOTICE WAS GIVEN AND THE ASSESSEE 3 SHRI KARIM KAMRUDDIN MALIK SURRENDERED THE ADDITIONAL INCOME TO THE TUNE OF ` 1,01,25,000 TO BUY PEACE AND THEREAFTER THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF ` 1,04,09,803. THE LEARNED COMMISSIONER (APPEALS) CO NFIRMED THE PENALTY, THEREFORE, THE ASSESSEE FILED THE PRES ENT APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS ADVANCED BY BOTH THE PA RTIES AND PERUSED THE MATERIAL ON RECORD. THE FACTS ARE THAT, THE ASSESSEE PURCHASED THE LAND FROM FOUR PARTIES WHOSE DETAILS HAVE BEEN GIVEN AT PAGE1 OF THE PENALTY ORDER. THE ASSESSING OFFICER EXAMINED SHRI ARUN KHODANKAR. HE DEPOSED THAT HE RECEIVED A SUM OF ` 1,03,00,000 IN CASH FROM SHRI KARIM KAMRUDDIN MALIK OVER AND ABOVE THE REGISTERED VALUE AND HE INVESTED THE CASH RECEIVED FOR THE PUR CHASE OF LAND TO THE TUNE OF ` 80,000. HE ALSO PRODUCED THE AGREEMENT OF SALE. TH E STATEMENT OF SHRI MEGHRAJ MALANI, BROKER WAS ALSO R ECORDED. THE SAID PIECE OF EVIDENCE WAS CONFRONTED TO THE ASSESSEE. T HE ASSESSEE ADMITTED THE UNDISCLOSED INCOME TO THE TUNE OF ` 1,01,25,000. THEREAFTER, THE ASSESSMENT WAS COMPLETED BY ADDING THE SAID AMOUNT AND PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WAS INITIATED. THE FIRST CONTENTION OF THE ASSESSEE IS THAT THE NOTICE OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT HAS NOT BEEN ISSUED IN ACCORDANCE WITH LAW BECAUSE NO SPECIFIC LIMB WAS ME NTIONED ON THE BASIS OF WHICH THE PENALTY IS LEVIED. THEREFORE, TH E PENALTY IS NOT LIABLE 4 SHRI KARIM KAMRUDDIN MALIK TO BE SUSTAINABLE. IN SUPPORT OF THIS CONTENTION, T HE LEARNED COUNSEL FOR ASSESSEE PLACED RELIANCE UPON THE LAW SETTLED B Y THE HONBLE JURISDICTIONAL HIGH COURT IN THE FOLLOWING DECISION S: I) CIT V/S SHRI SAMSON PERINCHERY, [2017] 392 ITR 4 (B OM.); II) CIT & ORS. V/S M/S. SSAS EMERALD MEADOWS, ITA NO.3 80 OF 2015, JUDGMENT DATED 23 RD NOVEMBER 2015; III) CIT AND ANR. V/S MANJUNATHA COTTON & GINNING FACTOR Y, [2013] 359 ITR 565 (KAR.); IV) SIDDHI HOME MAKERS V/S ITO, ITA NO.4168/MUM./2013, ORDER DATED 28 TH APRIL 2017; AND V) NEW SAROTHIA ENGINEERING CO. V/S CIT, [2006] 282 IT R 642 (GUJ.). 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE PLACED RELI ANCE ON THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) IN QUESTION. IN THE INSTANT CASE ALSO, WE FIND THAT THE NOTICE WAS ISSUED IN A SIMPLE PROFORMA IN WHICH BOTH THE LIMBS TO LEVY THE PENALT Y HAS BEEN MENTIONED. NO SPECIFIC LIMB HAS BEEN MENTIONED UNDE R WHICH THE PENALTY IS GOING TO BE LEVIED. IN VIEW OF THE LAW S ETTLED IN THE ABOVE MENTIONED CASE, WE ARE OF THE VIEW THAT THE PENALTY LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED COMM ISSIONER (APPEALS) IS NOT LIABLE TO BE SUSTAINED IN THE EYES OF LAW. IN VIEW OF THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORD ER PASSED BY THE 5 SHRI KARIM KAMRUDDIN MALIK LEARNED COMMISSIONER (APPEALS) IS NOT LIABLE TO BE SUSTAINED IN THE EYES OF LAW. THEREFORE, WE SET ASIDE THE SAME AND D ELETE THE PENALTY. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.06.2017 SD/ - P.K. BANSAL VICE PRESIDENT SD/ - AMARJIT SINGH JUDICIAL MEMBER NAGPUR, DATED: 30.06.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, NAGPUR