Income-tax Officer, Pune V. Smt. Leena Alekar, Pune

ITA 2035/PUN/2013

• Counselvise Citation: 203524514 RSA 2013
• Duration Of Justice: 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 25-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Assessee Lawyers: S N DOSHI
• Keywords: Capital asset; Cost of acquisition; Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS . SUSHMA CHOWLA , JUDICIAL MEMBER ITA NO. 20 35 /PN/201 3 (ASSESSMENT YEAR: 20 0 8 - 09 ) THE INCOME TAX OFFICER, WARD 3(1), PMT BUILDING, 1 ST FLOOR, SHAN KARSHETH ROAD, SWARGATE, PUNE . APPELLANT VS. SMT. LEENA ALEKAR, 40/34, BHONDE COLONY, KARVE ROAD, PUNE PAN: AANPA3565D . RESPONDENT DEPARTMENT BY : SHRI P.S. NAIK ASSESSEE BY : SHRI S .N. DOSHI DATE OF HEARING : 30 - 0 9 - 2014 DATE OF PRONOUNCEMENT : 13 - 10 - 2014 ORDER PER SUSHMA CHOWLA, J M THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - II, PUNE DATED 29 - 08 - 2013 RELATING TO ASSESSMENT YEAR 2008 - 09 AGAINST PENALTY LEVIED U/S. 271(1)( C) OF THE INCOME - TAX ACT. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN DELETING THE PENALTY U/S 271(1)(C) WITHOUT EXAMINING THE FACTS & EVIDENCES AVAILABLE ON RECORDS AND BROUGHT OUT BY THE ASSESSING OFFICER IN THE PENALTY ORDER IN SUPPORT OF LEVY OF PENALY U/S. 271 (1 )(C) OF THE ACT. 2. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN DELETING THE PENALTY U/S. 271(1)(C) OF THE ACT WHEN THE VALUATION REPORT OF THE ASSESSEE WAS HAVING GLARING ERRORS AND THE CLAIMS WERE MADE WITHOUT ANY PROPER METHOD OF VALUATION. ITA NO. 20 35 /PN/201 3 2 3. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN DELETING THE PENALTY LEVIED WITHOUT APPRECIATING THE FACT THAT THE VALUATION REPORT OF THE ASSESSEE WAS SHOWIN G PRESENT VALUE OF THE PROPERTY AT RS.4,47,40,512/ - AS AGAINST THE SALES CONSIDERATION OF RS.2,14,11,250/ - & GOVERNMENT VALUATION OF RS.2,56,50,000/ - , THEREBY FURNISHING INACCURATE PARTICULARS OF INCOME. 4. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ER RED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAD DECLARED THE FAIR MARKET VALUE OF PROPERTY AS ON 01.04.1981 AT RS.86,27,348/ - AS AGAINST THE VALUATION MADE BY HER VALUER AT RS.81,19,875/ - . BY ADOPTING THE FAIR MARKET VALUE AS ON 01.04.1981 MORE THAN THE VALUATION MADE, THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME. 5. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT EXCESS DEDUCTION OF RS.27,96,176/ - ON ACCOUNT OF COST OF ACQUISITION WAS MADE BY THE ASSESSEE WITHOUT ANY BASIS AND HAD THEREBY FURNISHED INACCURATE PARTICULARS OF INCOME. 6. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN DELETING THE PENALTY WHEN THE ASSESSEE HAD MADE EXCESS CLAIM OF DEDUCTIONS & COST OF ACQUISITION TO CLAIM HU GE LOSS AND HAD THEREBY ATTEMPTED TO EVADE TAX BY FURNISHING INACCURATE PARTICULARS OF INCOME. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OR ALL THE GROUNDS OF APPEAL. 3. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST THE LEVY OF PEN ALTY UNDER SECTION 271(1)(C) OF THE ACT. 4. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT THE QUANTUM APPEAL IN ITA NO. 1838/PN/2013 HAS BEEN HEARD ON 17 - 09 - 2014. ITA NO. 20 35 /PN/201 3 3 5. THE LD. DR FOR THE REVENUE HOWEVER, PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST THE LEVY OF PENALTY FOR CONCEALMENT U/S. 271(1)(C) OF THE ACT. 7. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION, HAD SOLD THE PLOT OF LAND SITUATED AT GHORPADE PETH, PUNE FOR ABOUT RS.2.56 CRORES. THE ASSESSEE HAD VALUED THE COST OF THE PLOT AS ON 01 - 04 - 1981 ON THE BASIS OF VALUERS REPORT AND HAD DECLARED LONG TERM CAPITAL LOSS ON THE SALE OF THE SAI D LAND. THE ASSESSING OFFICER, HOWEVER, MADE A REFERENCE TO THE DISTRICT VALUATION OFFICER U NDER SECTION 55A OF THE ACT AND RE - WORKED THE INCOME FROM CAPITAL GAIN. THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE RELYING ON THE RATIO LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. DAULAT MOHTTA (HUF) 360 ITR 680 (BOM) AND RATIO LAID DOWN BY THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF SMT. KRISHNABAI TINGRE 101 ITD 317 (PUNE). THE CIT(A) ACCEPTED THE PLEA OF THE ASSESSEE AND DELETED THE RE - WORKING OF CAPITAL GAIN MADE BY THE ASSESSING OFFICER. THE REVENUE CHALLENGED THE SAID ORDER OF CIT(A) BEFORE THE TRIBUNAL VIDE ITA NO. 1838/PN/2013. IN THE ABOVE SAID FACTS AND CIRCUMSTANCES, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME IN CLAIMING CAPITAL LOSS OF RS.2.21 CRORES AND LEVIED PENALTY U NDER SECTION 271(1)(C) OF THE ACT AT RS.72,75,462/ - . 8. THE CIT(A) DELETED THE PENALTY LEVIED U/S. 271(1(C) OF THE ACT SINCE, THE QUANTUM OF ADDITION /DISALLOWANCE WAS DELETED BY THE CIT(A) VIDE ORDER DATED 30 - 04 - 2013. ITA NO. 20 35 /PN/201 3 4 9. THE ISSUE ON WHICH THE ASSESSEE WAS FOUND TO HAVE FURNISHED INACCURATE PARTICULARS OF INCOME BY THE ASSESSING OFFICER IS IN RELATION TO THE REFERENCE MADE TO THE DVO U/S. 55A OF THE AC T FOR DETERMINING THE COST OF THE PLOT AS ON 01 - 04 - 1981. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. DAULAT MOHTTA (HUF) (SUPRA) HAD HELD THAT THE REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER COULD ONLY BE MADE IN CASES WHERE THE VALUE OF CAPI TAL ASSET SHOWN BY THE ASSESSEE WAS LESS THAN ITS FAIR MARKET VALUE AS ON 01 - 04 - 1981. HOWEVER, WHERE THE VALUE OF THE CAPITAL ASSET SHOWN BY THE ASSESSEE ON THE BASIS OF APPROVED VALUERS REPORT WAS MORE THAN THE FAIR MARKET VALUE, REFERENCE U/S. 55A OF T HE ACT, WAS NOT VALID. SIMILAR PROPOSITION HAS BEEN LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. M/S. PUJA PRINTS 360 ITR 697 (BOM). 10. IN THE FACTS OF THE PRESENT CASE BEFORE US THE ASSESSEE HAD DECLARED THE COST OF ITS PLOT AS ON 01 - 04 - 1981 ON THE BASIS OF VALUERS REPORT WHICH AS PER THE ASSESSING OFFICER WAS OF THE HIGHER SIDE AND REFERENCE WAS MADE TO THE DISTRICT VALUATION OFFICER IN ORDER TO COMPUTE THE VALUE OF THE PLOT OF LAND AS ON 01 - 04 - 1981. THE TRIBUNAL IN ITA NO. 1838/ PN/2013 RELATING TO ASSESSMENT YEAR 2008 - 09 VIDE ORDER DATED 17 - 09 - 2014, F OLLOWING THE RATIO LAID DOWN OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. DAULAT MOHTTA (HUF) (SUPRA) AND CIT VS. M/S. PUJA PRINTS (SUPRA) , HELD THAT THE RE - DETERMINATION OF INCOME FROM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE WAS NOT WARRANTED. UNDER SUCH CIRCUMSTANCES THE ASSESSEE CANNOT BE SAID TO HAVE FURNISHED INACCURATE PARTICULARS OF INCOME, ESPECIALLY IN THE CASE WHERE THE VALUATION OF COST OF PLOT OF LAND AS ON 0 1 - 04 - 1981 HAD BEEN DECLARED ON THE BASIS OF VALUER S CERTIFICATE. ITA NO. 20 35 /PN/201 3 5 11. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO DELETE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. IN VIEW OF THE ABOVE, WE UPHOLD THE ORDER OF THE CIT(A) IN DELETING PENALTY L EVIED U NDER SECTION 271(1(C) OF THE ACT. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE DISMISSED. 1 2 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF OCTOBER, 2014. S D/ - SD/ - ( G.S. PANNU ) ( SUSHMA CHOWLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 13 TH OCTOBER , 2014. RK COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTM ENT; 3) THE CIT(A) - I I, PUNE ; 4) THE CIT - I I , PUNE ; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. //TRUE COPY// BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE