Smt. Maya K. Dharwani, Ahmedabad V. The Income tax Officer, Ward-7(2)(3), Ahmedabad

ITA 2094/AHD/2018

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9517 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-10-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 08-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Wrong claim
• Section: 271(1)(c); 54F; 54EC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD BEFORE SHRI PRAMOD M. JAGTAP, VICE PRESIDENT & Ms. MADHUMITA ROY, JUDICIAL MEMBER आयकर अपील सं./ I.T.A. No. 2094/Ahd/2018 (िनधार्रण वषर् / Assessment Year : 2013-14) Smt. Maya K Dharwani Block No.88, B Ward, Opp. Railway Station, Kuber Nagar, Ahmedabad 382340 बनाम/ Vs. ITO Ward – 7(2)(3), 7 th Floor, Room No. 705, Nature View Building, Nr. H K House, Off. Ashram Road, Ahmedabad 380014 èथायी लेखा सं./जीआइआर सं./PAN/GIR No. : AEFPD1506D (अपीलाथीर् /Appellant) .. (प्र×यथीर् / Respondent) अपीलाथीर् ओर से /Appellant by : Shri S. N. Divatia, A.R. प्र×यथीर् की ओर से/Respondent by : Shri Mukesh Thakwani, Sr. D.R. स ु नवाई की तारीख / Date of Hearing 14/10/2022 घोषणा की तारीख /Date of Pronouncement 31/10/2022 O R D E R PER Ms. MADHUMITA ROY - JM: The instant appeal filed by the assessee is directed against the order dated 25.07.2018 passed by the Ld. Commissioner of Income Tax (Appeals) – 7, Ahmedabad arising out of the order dated 17.08.2017 passed by the ITO, Ward-7(2)(3), Ahmedabad under section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) for Assessment Year 2013-14, ITA No. 2094/Ahd/2018 (Smt. Maya K Dharwani vs. ITO) A.Y.– 2013-14 - 2 - whereby and whereunder penalty was imposed under Section 271(1)(c) of the Act to the tune of Rs.12,77,200/- on account of disallowance of exemption under Section 54F and 54EC of the Act. 2. During the year under consideration, the assessee has sold one capital assets on 09.11.2012 at an amount of Rs.81,50,000/- and stated to have been invested in bonds of Rs.41,00,000/- and deposited Rs.20,00,000/- in Capital Gain Account Scheme held with SBI & claimed deduction under Section 54EC & 54F respectively. 3. During the course of assessment proceedings, no evidence has been filed by the assessee in support of the claim as mentioned hereinabove. However, upon investigation made by the Ld.AO, it was revealed that the assessee never invested Rs.41,00,000/- shown as investment in capital gain bond and out of deduction claimed under Section 54F of the Act in respect of investment in LTCG Account Scheme of SBI, the assessee had invested only amount of Rs.2,00,000/- against the claim of Rs.20,00,000/- in the return of income and also as submitted before the AO. Further that, the said Rs.2,00,000/- were not deposited within the prescribed time limit and also after filing of return. Hence, both the claims of the assessee were rejected and the entire amount was brought to tax and penalty under Section 271(1)(c) of the Act was initiated for concealing the income by furnishing inaccurate particulars of income intentionally to avoid tax liabilities. 4. We have heard the parties and we have perused the materials available on record. So far as the claim under Section 54EC of the Act to the tune of ITA No. 2094/Ahd/2018 (Smt. Maya K Dharwani vs. ITO) A.Y.– 2013-14 - 3 - Rs.41,00,000/- is concerned, the assessee remained silent in regard to submission of the evidence in support of the said claim. Any debit entry in the bank account of the assessee was either found by which it could be established that the assessee had made payment towards purchase of long term assets i.e. REC Bond within the meaning of the provision of Section 54EC of the Act. Subsequently, by and under the revised statement of income on 19.10.2015, the assessee withdrew the claim under Section 54EC of the Act and enhanced the total income from Rs.8,63,230/- to Rs.39,65,470/- admitting the fact of not purchasing any bond of Rs.41,00,000/- but invested Rs.30,00,000/- to purchase the property till the date of filing of the return of income out of total investment of the property of Rs.45,00,000/-. At that juncture, upon further verification, it appears that such revised claim as made by the assessee of investment of Rs.30,00,000/- in the new property was found not sustainable. In fact, it was categorically mentioned in the deed of sale itself which was registered on 16.09.2105 that it was ready built bungalow which was further corroborated with photograph annexed with the said deed. Apart from that making investment of Rs.30,00,000/- as per the revised statement of income before filing the return of income was also found to be incorrect. Upon verification of the purchase date, it was found that the assessee has purchased readymade RHP. The building is measuring at 171.50 sq.mtr. at Survey No.1949/B/113, TPS 97, Final Plot No. 36-36/1. The registered deed whereof evidencing the said fact coupled with the photograph appended therein particularly at page Nos.11 & 12. This establishes the fact of purchasing readymade bungalow as on date of transfer on 18.09.2015 upon consideration of Rs.81,50,000/-. The fact of purchasing readymade house property has also never been denied by the assessee even during the course of assessment ITA No. 2094/Ahd/2018 (Smt. Maya K Dharwani vs. ITO) A.Y.– 2013-14 - 4 - proceedings or before the First Appellate Authority. The assessee had sold the original asset on 09.11.2012 and new property was purchased on 16.09.2015 which is beyond two years limit prescribed under Section 54F(1) of the Act and therefore, even otherwise the claim of deduction under Section 54F of the Act made by the assessee is found to be wrong. In this regard, the observation made by the Ld.AO in penalty proceedings is as follows: “4.1 On verification of the purchase deed made it clear that the property purchased is readymade RHP. The plot area is 150 Sq. Mtr. and building thereon 171.50 Sq. Mtr, city survey No 1949/B/113, TPS 97 Final Plot No 36 and 36/1. The description of the said property and photographs appended in the deed on page No. 11 &12 made it sure that the RHP was ready made bungalow as on the date of transfer i.e. 18/09/2015. There was no doubt that the assessee had purchased a readymade bungalow against her sold open plots of land vide deed R No. 11752/2012 dated 09/11/2012 for consideration of Rs. 81,50,000/-. Considering these facts, and though the assessee had not originally disclosed the real truth of transaction which was initially look that it would be covered u/s. 54F of the IT Act, 1961. However on going through the section which reads as under: Section 54F of the IT act, 1961: As per section 54F of the IT act, two important conditions reported below were brought to the assessee's notice: A. Purchase of new House (i) It should be purchased within one year before the date of transfer of original asset, (ii) It should be purchased within two year after the date of transfer of original asset. B. Construction of new house The construction should be completed within three years from the date of transfer of original asset. 4.2 It was noticed that only condition A is applicable as the assessee had purchased a readymade house property. The assessee had never denied the said objection either during the course of assessment proceedings or before the Ld. C.I.T. (A). It was seen that the assessee had sold the original asset on 09/1.1/2012 and the new property was purchased on 16/09/2015 which is beyond two years limit prescribed u/s 54F(1) of the IT Act. It is therefore, the reply given by the assessee on 19/10/2015 in response to show cause notice issued on 07/10/2015 was nothing but the assessee had tried by giving colourful device for the first time with submission along with revised statement of total income to evade the tax liabilities for the wrong claim of deduction u/s. 54F of the Act, which was rejected by the A.O. In nut shell, the assessee had given falls statement and claimed deduction u/s.54F & 54EC of the Act, were squarely not sustainable as discussed in the assessment order and facts brought on record. The A.O. in his assessment order's page No 9 also mentioned the aforesaid fact that, ITA No. 2094/Ahd/2018 (Smt. Maya K Dharwani vs. ITO) A.Y.– 2013-14 - 5 - "Now it was a afterthought the assessee had reported that claim for new residential house property was made for Rs. 45,00,000/- out of which Rs. 30,00,000/- has been paid. It was seen that as per purchase deed Rs. 30,00,000/- (Rs. 15,00,000/- + Rs. 15,00,000/-) claimed to had been paid on 29/01/2013 and balance Rs. 15,00,000/- paid on 11/09/2015. It was observed that the assessee was trying to misguide the Income tax department by furnishing inaccurate details about the payments to be made for purchase of new RHP i.e. Rs. 11,00,000/-and in this way trying to say that the claim was made for deduction u/s 54F of the IT act. As a matter of fact there was no purchase deed when the return was furnished on 14/03/2014. There was no claim u/s 54Fofthe IT Act in respect of property purchased forRs. 45,00,000/-,the deed for which has been registered vide R. No. 13206/2015 dated 16/09/2015 i.e. much later than the date of furnishing of return for A.Y. 2013-14." 4.1 Thus, it is found that the assessee has made patent wrong claim under Section 54EC and 54F of the Act. She has failed to produce any evidence in respect to purchase of Rs.45,00,000/- for claim of deduction under Section 54EC of the Act either during the assessment proceeding or penalty proceeding even before the Ld. CIT(A) or finally before us. Moreso, once the query was raised by the Ld.AO in this respect the appellant has filed the revised statement of income and withdrew her claim made under Section 54EC of the Act, which further establishes the fact of making false and untrue statement during filing of return of income by her. So far as the claim of 54F of the Act is concerned, the assessee has purchased readymade property against the sale consideration received by her but the same was not done within the prescribed time under Section 54F(1) of the Act. 4.2 From the above fact, it is evidently clear that in the computation of total income furnished with the return of income for A.Y. 2013-14 filed on 14.03.2014, the assessee has done nothing but made an attempt to show less Long Term Capital Gain by making false claim under Section 54EC of the Act, without making any investment and therefore, the same was not legally admissible for the year under consideration. On this premise, the Revenue, in our considered opinion, rightly imposed penalty for intentionally furnishing ITA No. 2094/Ahd/2018 (Smt. Maya K Dharwani vs. ITO) A.Y.– 2013-14 - 6 - inaccurate particulars of income within the meaning of Section 271(1)(c) of the Act. Thus, we do not find any iota of doubt in holding that the appellant is consciously and continuously mis-represented the facts and furnished inaccurate particulars of her income by making computation for this claim under Section 54EC of the Act and 54F of the Act. We therefore confirm the order passed by authorities below in imposing impugned penalty under Section 271(1)(c) of the Act. 5. In the result, assessee’s appeal is dismissed. This Order pronounced on 31/10/2022 Sd/- Sd/- ( P. M. JAGTAP) (MADHUMITA ROY) VICE PRESIDENT JUDICIAL MEMBER Ahmedabad; Dated 31/10/2022 S. K. SINHA True Copy आदेश की प्रितिलिप अग्रेिषत/Copy of the Order forwarded to : 1. अपीलाथीर् / The Appellant 2. प्र×यथीर् / The Respondent. 3. संबंिधत आयकर आय ु क्त / Concerned CIT 4. आयकर आय ु क्त(अपील) / The CIT(A)- 5. िवभागीय प्रितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाडर् फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अहमदाबाद / ITAT, Ahmedabad