Shri Kishore Kumar Kundanma , Bengaluru V. Assistant Commissioner Of income tax Circle - 5 (2)(1), Bengaluru

ITA 2043/BANG/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8932 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 13-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SOUMYA KRISHNAMURTHY
• Keywords: Set aside
• Section: 271(1)(c); 143(3); 142(1); 250; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES A BENCH: BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA. NO. 2043 /BANG/2018 (ASSESSMENT YEAR: 20 06 - 07 ) SHRI KISHORE KUMAR KUNDANMA, NO.11, 1 ST CROSS, PVN LANE, TIGALARPET NAGARATHPET CROSS, BENGALURU 560 002 PAN: AKOPK 5734B VS. ASST. COMMISSIONER OF INCOME TAX , CIRCLE 1, BANGALORE. (APPELLANT) (RESPONDENT) ASSESSEE BY: SMT. SOUMYA KRISHNAMURTHY , ADVOCATE. REVENUE BY: SHRI UJJWAL KUMAR, JCIT (D.R) DATE OF HEARING : 05.08 .2019 DATE OF PRONOUNCEMENT : 20 .0 9 .2019 O R D E R PER SHRI PAVAN KUMAR GADALE, JM : THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 5, BANGALORE PASSED UNDER SECTION 271(1)(C) AND 250 OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE HAS RAISED THE GROUNDS OF APPEAL CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 2 ITA NO. 2043 /BANG/2018 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE AND HAS ENTERED INTO A JOINT DEVELOPMENT AGREEMENT ALONG WITH OTHER CO - OWNER S WHEREAS THE ASSESSING OFFIC ER ON PERUSAL OF THE DOCUMENTS FIND THAT THE INCOME HAS ESCAPED ASSESSMENT AND ISSUED NOTICE DT.25.3.2013. IN COMPLIANCE THERE TO, THE ASSESSEE FILED REPLY ON 25.4.2013 WITH COPY OF RETURN OF INCOME FILED ON 26.7.2007 ALONG WITH THE ANNEXURES. WHERE AS A.O. F O U ND THAT THE ASSESSEE HAS FILED RETURN OF INCOME ON 26.07.2007 WITH TOTAL INCOME OF RS.1,11,20,880 AND AGRICULTURAL INCOME OF RS.25,650 AND OTHER INCOME S . THE ASSESSING OFFICER ISSUED NOTICES UNDER SECTION S 143(2) AND 142(1) OF THE ACT . IN COMP LIANCE, THE LD. AR ATTENDED FROM TIME TO TIME AND SUBMITTED THE DETAILS. THE ASSESSING OFFICER ON PERUSAL OF JDA WITH M/S. BRIG ADE ENTERPRISES LIMITED AND WITH M/S. RAINBOW PROPERTIES FOUND THAT THERE IS NO DISCLOSURE OF SHARE OF PROFIT FROM CO - OWNER PROPERT IES WHERE THE ASSESSEE HAS 1/7 TH SHARE BEING RS.7,5 1,226 AND DETERMINED THE TOTAL INCOME OF RS.1,18,97,756 AND PASSED ORDER UNDER SECTION 143(3) R.W.S. 147 OF THE ACT DT.24.2.2014. SUBSEQUENTLY, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS . THE ASSESSEE FILED DETAILS AND 3 ITA NO. 2043 /BANG/2018 EXPLANATION BUT PENALTY WAS LEVIED AND ON APPEAL THE CIT(APPEALS) HAS CONFIRMED THE PENALTY ORDER AND DISMISSED THE ASSESSEE'S APPEAL. AGGRIEVED BY THE ORDER OF CIT(APPEALS), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING, THE LEARNED A .R. HAS SUBMITTED THAT THE CIT(APPEALS) HAS ERRED IN CONFIRMING THE PENALTY . WHERE A S SHOW CAUSE NOTICE DO NOT INDICATE WHETHER PENALTY IS LEVIED FOR CONCEALMENT OF INCOME OR FURNISHING OF INA CCURATE PARTICULARS. FURTHER THE LD. AR SUBMITTED THAT THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER UNDER SECTION 143(3) R.W.S. 147 OF THE ACT FOR THE SAID ASSESSMENT YEAR AND ON FURTHER APPEAL, THE TRIBUNAL HAS SET ASIDE THE ISSUE S , IN DISPUTE TO THE FILE OF ASSESSING OFFICER AND PLACED COPY ON RECORD AND PRAYED FOR ALLOWING THE APPEAL. CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF CIT(APPEALS). 5. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA FACIE, THE SOLE DISPUTED ISSUE AS ENVISAGED BY THE LD. AR IS IN RESPECT OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE QUANTUM APPEAL IN ASSESSEE'S OWN CAS E FOR THE 4 ITA NO. 2043 /BANG/2018 PRESENT ASSESSMENT YEAR WAS SET ASIDE TO THE FILE OF ASSESSING OFFICER . HENCE THE PENALTY ORDER CANNOT BE SUSTAINED. WE FOUND THE CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF ASSESSEE'S OWN CASE IN ITA NO.954/BANG/2016 FOR THE ASSESSMENT YEAR 2 006 - 07 DT.16.05.2019 HAS OBSERVED AT PAGE 2 AND PARAS 4 AND 5 WHICH READ AS UNDER : 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FIND THAT THE LEARNED DR OF THE REVENUE COULD NOT POINT OUT ANY DIFFERENCE IN FACTS IN THE PRESENT YEAR AS COMPARED TO A . YS. 2007 - 08, 2008 - 09 & 2010 - 11 FOR WHICH THE TRIBUNAL ORDER IS MADE AVAILABLE BY THE LEARNED AR OF THE ASSESSEE. HENCE, WE FIND NO REASON TO TAKE A CONTRARY VIEW IN THE PRESENT YEAR. HENCE, ON THE SAME LINE, IN THE PRESENT YEAR ALSO, WE SET ASIDE THE ORD ER OF CIT (A) AND RESTORE THE MATTER BACK TO THE AO FOR FRESH DECISION WITH THE SAME DIRECTIONS AS WERE GIVEN BY THE TRIBUNAL IN THE CASE OF THE PRESENT ASSESSEE IN ITS ORDER FOR A. YS. 2007 - 08, 2008 - 09 & 2010 - 11 AND IN THE CASE OF THE CO OWNER. WE FIND TH AT THE DIRECTION WAS THIS THAT THE AO SHOULD REEXAMINE THE CLAIM OF EXPENDITURE INCURRED IN LEVELING OF THE PLOT OR OTHERWISE RELEVANT FOR THE PURPOSE OF COMPUTATION OF SHORT TERM CAPITAL GAIN. IN THE PRESENT YEAR ALSO, WE GIVE THE SAME DIRECTIONS TO THE A O. THE AO PASS NECESSARY ORDER AS PER LAW AS PER ABOVE DISCUSSION AFTER PROVIDING REASONABLE OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. WE FOUND THE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE ARE SUPPORTED WITH THE ORDER OF THE CO - ORDINATE BENCH OF TRIBUNAL WHICH HAS BEEN ACCEPTED BY THE REVENUE. SINCE THE CO - ORDINATE BENCH OF TRIBUNAL IN THE QUANTUM APPEAL HAS RESTORED DISPUTED ISSUE TO THE FILE OF ASSESSING OFFICER FOR VERIFICATION AND EXAMINATION, WE ARE OF THE OPINION THAT PENALTY LEVIED ON THE BASIS OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 5 ITA NO. 2043 /BANG/2018 OF THE ACT CANNOT BE SUSTAINED. ACCORDINGLY WE SET ASIDE THE ORDER OF CIT(APPEALS) AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY AND ALLOW THE GROUNDS OF APPEAL OF ASSESSEE. 7. IN THE RESULT, THE ASSESSEE'S APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 0 T H SEPT ., 2019. S D / - S D / - (A.K. GARODIA) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 0 .0 9 . 2019. *REDDY GP COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (A) 4. PR. CIT 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE