ACIT, New Delhi V. M/s. National Cooperative Consumers Federation of India Ltd., New Delhi

ITA 214/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6208 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 02-03-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 10-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KO NUNJANA
• Keywords: Cost of acquisition
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SRI C.M.GARG, JM AND SRI O.P. KANT, AM ITA NO. 214/DEL./2014 : A SSTT. YEAR : 2002-03 ACIT CIRCLE-23(1), NEW DELHI VS NATIONAL COOPERATIVE CONSUMERS FEDERATION OF INDIA LTD. DEEPALI, 5 TH FLOOR, 92,NEHRU PLACE NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAAAN0109N ASSESSEE BY : SH. SANJAY AGGARWAL, CA REVENUE BY : SH. P. DAM KO NUNJANA, SR.DR DATE OF HEARING : 02.03.2016 DATE OF PRONOUNCEMENT : 31.03.2016 ORDER PER C.M.GARG, J.M. THIS APPEAL BY THE REVENUE HAS BEEN DIRECTED AGAINS T TE ORDER OF THE CIT(A)- XXIII, NEW DELHI DATED 24.10.2013 PA SSED IN FIRST APPEAL NO. 09/2012-13 FOR AY 2002-03 BY WHICH PENAL TY IMPOSED, BY THE AO VIDE ORDER DATED 23.3.2012, U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) HAS BEEN DELETED ALLOWING THE APPEAL OF THE ASSESSEE. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER : ITA NO. 214/DEL/2014 NATIONA L COOPERATIVE CONSUMERS FEDERATION OF INDIA 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS IN DEL ETING THE ENTIRE PENALTY OF RS. 13,76,050/-, WHEN IN THE QUAN TUM APPEAL, THE HONBLE HIGH COURT HAS ADJUDICATED FINA L FIGURE OF LONG TERM CAPITAL GAIN AT RS. 1,01,21,429 /- AS AGIASNT RS. 51,27,967/-, CLAIMED BY THE ASSESSEE IN ITS RETURN OF INCOME. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS IN DELETIN G THE ENTIRE PENALTY OF RS. 13,76,050/-, WHEN ASSESSEE HA S FILED INACCURATE PARTICULARS OF LONG TERM CAPITAL GAIN AN D CONCEALED PARTICULARS OF INCOME TO THE TUNE OF RS. 49,84,460/-. 2. WE HAVE HEARD ARGUMENTS OF BOTH THE PARTIES A ND CAREFULLY PERUSED THE RELEVANT MATERIALS PLACE ON THE RECORD OF THE TRIBUNAL. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTING THE PENALTY ORDER CONTENDED THAT AFTER INSERTION OF EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT, THE ONUS IS ON THE ASSESSEE T O SHOW THAT THERE WAS NO INTENTION OF CONCEALMENT ON FURNISHING OF IN ACCURATE PARTICULARS OF THE INCOME. PLACING RELIANCE ON THE DECISION OF HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. GURBACHANLAL 250 DTR 157 (DEL.) THE LD. DR VEHEMENTLY CONTENDED THAT THE FACTS FULLY JUSTIFY THE LEVY OF PENALTY AS IT WAS CLEARLY ESTABLISHED BY THE AO THAT THE ASSESSEE HAS TRIED TO SUPPRESS ITS TAXA BLE INCOME, WHICH WAS NOT ALLOWABLE AS PER PROVISIONS OF THE ACT, THU S IT WAS AMPLY CLEAR THAT THE ASSESSEE HAS FURNISHED INACCURATE PA RTICULARS OF ITS INCOME AND THE PENALTY U/S 271(1)(C) OF THE ACT WAS CORRECTLY TRIED ON THE ASSESSEE. THE LD. DR POINTED OUT THAT THE CI T(A) GRANTED RELIEF TO THE ASSESSEE WITHOUT ANY VALID AND JUSTIF IED REASON ITA NO. 214/DEL/2014 NATIONA L COOPERATIVE CONSUMERS FEDERATION OF INDIA 3 THEREFORE, IMPUGNED ORDER MAY BE SET ASIDE BY REST ORING THAT OF THE AO. 3. THE LD. AR DRAWN OUR ATTENTION TO RELEVANT OPE RATIVE PARA 4.3 OF THE IMPUGNED ORDER AND CONTENDED TWO IMPUGNE D ORDER AND CONTENDED THAT IN THE INSTANT CASE THE ASSESSEE NOT ONLY DISCLOSED ALL THE CORRECT PARTICULARS OF ITS INCOME IN THE RETURN FILED BUT ALSO CAPITAL GAINS HAS BEEN CALCULATED BY THE AO ON THE BASIS OF INFORMATION SUBMITTED BY THE ASSESSEE. PLACING RELI ANCE OF THE ORDER OF ITAT DELHI IN THE CASE OF MILLENIUM INTERNATIONA L VS. ACIT SINCE REPORTED AS (2013) 38 TAXMAN.COM 16 (DELHI-TRIBUNAL ) THE LD. AR SUBMITTED THAT WHERE THE REVENUE AUTHORITIES MAKE ADDITIONS/DISALLOWANCE ON THE BASIS OF DIFFERENT SE T OF EVIDENCE BY TAKING A DIFFERENT VIEW IN RESPECT OF CLAIM OF THE ASSESSEE AND THERE ARE EXISTENCE OF TWO POSSIBLE VIEWS THEN PENALTY U/ S 271(1)(C) OF THE ACT CANT BE IMPOSED AS THERE IS NO OCCASION FOR TH E ASSESSEE EITHER TO CONCEAL PARTICULARS OF INCOME. THE AR LASTLY POI NTED OUT THAT THE REVENUE AUTHORITIES TOOK A DIFFERENT VIEW ON THE SA ME MATERIAL AND EVIDENCE WHICH WAS SUBMITTED DURING ASSESSMENT PROC EEDINGS THEN MERELY BECAUSE THE AO AND CIT(A) MADE ADDITION BY T AKING A DIFFERENT VIEW, NO ALLEGATION OF FURNISHING OF INAC CURATE PARTICULARS OR CONCEALMENT OF PARTICULARS OF INCOME CAN BE LABE LED AGAINST ASSESSEE. 4. FROM THE CAREFUL CONSIDERATIONS OF ABOVE NOTED RIVAL SUBMISSIONS AT THE OUTSET, FROM THE VIGILANT READIN G OF PENALTY ORDER ITA NO. 214/DEL/2014 NATIONA L COOPERATIVE CONSUMERS FEDERATION OF INDIA 4 AS WELL OF THE FIRST APPELLATE IMPUGNED ORDER, WE N OTE THAT THE CIT(A) GRANTED RELIEF TO THE ASSESSEE BY CONCLUDING AS FOLLOWS : 4.3 I HAVE CAREFULLY PERUSED THE PENALTY ORDER PA SSED BY THE AO, AS WELL AS THE SUBMISSIONS MADE BY THE LD. AR. I HAVE ALSO CAREFULLY CONSIDERED THE CASE LAWS RELIED UPON BY THE LD. AR IN SUPPORT OF HIS CLIENT. IN THE CASE OF MILLENIUM INTERNATIONAL (SUPRA), THE HONBLE ITAT I N ITS ORDER DATED 08.08.2013 HAS HELD THAT WHERE REVENUE AUTHORITIES RELYING UPON DIFFERENT SET OF EVIDENCES , TOOK A DIFFERENT VIEW IN RESPECT OF ASSESSEES CLAIM OF PA YMENT OF CERTAIN EXPENSES, HAVING REGARD TO EXISTENCE OF TWO POSSIBLE VIEWS, PENALTY U/S 271(1)(C) COULD NTO BE IMPOSED IN RESPECT OF DISALLOWANCE OF AFORESAID CLAIM OF AS SESSEE. IN THE INSTANT CASE ALSO, NOT ONLY HAS THE APPELLAN T DISCLOSED ALL THE CORRECT PARTICULARS OF ITS INCOME IN ITS RETURN, BUT IT IS ALSO SEEN THAT IN ITS CASE, CAPIT AL GAINS HAS BEEN CALCULATED BY THE AO, THE LD. CIT(A) AND THE H ONBLE ITAT ACCORDING TO DIFFERENT METHODS, WHICH WERE AT VARIANCE WITH EACH OTHER. UNDER THESE CIRCUMSTANCES , I AM OF THE CONSIDERED OPINION THAT PENALTY U/S 271(1)(C ) CANNOT BE IMPOSED AS NEITHER HAS THE APPELLANT CONCEALED A NY FACTS, NOR HAS IT FILED ANY INACCURATE PARTICULARS OF ITS INCOME. THE PENALTY IMPOSED AMOUNTING TO RS. 13,76, 050/- IS HEREBY DELETED. 5. IT WAS NOTED BY THE CIT(A) THAT THE ASSESSEE FU RNISHED ALL THE CORRECT PARTICULARS OF ITS INCOME IN THE RETURN AND THE AO ALSO CALCULATED CAPITAL GAINS ON THE BASIS OF SAID INFOR MATION FURNISHED BY THE ASSESSEE HENCE ALLEGATION OF CONCEALMENT CAN NOT BE HELD AS SUSTAINABLE AGAINST THE ASSESSEE. 6. HOWEVER, THE AO, IN THE PENALTY ORDER AT PAGE 5 NOTED THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS O F ITS INCOME AS PER ITA NO. 214/DEL/2014 NATIONA L COOPERATIVE CONSUMERS FEDERATION OF INDIA 5 FINDINGS OF THE CIT(A) IN THE QUANTUM APPEAL AGAINS T THE ASSESSMENT ORDER PASSED U/S 143(3) READ WITH SECTION 147 OF TH E ACT ( COPY OF PAGE 21 TO 25 OF PAPER BOOK). BUT FROM THE VIGILANT READING OF THIS ORDER, IT IS CLEAR THAT THE CIT(A) HAS NOT CONCUR W ITH ANY SUCH ALLEGATION AS WRONGLY MENTIONED AND NOTED BY THE AO IN THE PENALTY ORDER AND THE APPEAL OF THE ASSESSEE HAS BEEN ALLOW ED. IT WAS THE TRIBUNAL WHICH RESTORED THE ISSUE TO THE FILE OF TH E AO, DIRECTING TO DETERMINE THE ACTUAL SALE CONSIDERATION AS WELL AS ACTUAL COST OF ACQUISITION. IN THE ORDER PASSED U/S 143(3) / 254 O F THE ACT THE AO MADE ADDITION ON A/C OF LONG TERM CAPITAL GAIN BY T AKING A DIFFERENT VIEW. 7. IN THIS SITUATION, WHEN ON THE SAME INFORMATIO N THE AOS VIEW WAS OVERRULED BY CIT(A) AND AGAIN THE FIRST AP PELLATE ORDER WAS DEMOLISHED BY THE ITAT AND THE ISSUE WAS RESTOR ED TO THE FILE OF WHICH AGAIN MADE ADDITION ON THE BASIS OF SOME CALC ULATION BY TAKING A DIFFERENT VIEW THEN IT IS VIVID THAT THE R EVENUE AUTHORITIES TO DIFFERENT VIEW ON DIFFERENT OCCASIONS ON THE BAS IS OF INFORMATION, EVIDENCE AND FACTS SUBMITTED BY THE ASSESSEE BY CON SIDERING A SET OF EVIDENCE AND BY TAKING A NEW VIEW POINT THEN THE AL LEGATION OF FURNISHING OF INACCURATE PARTICULARS OF INCOME CANN OT BE TAGGED TO THE ASSESSEE. THUS, PENALTY IMPOSED BY THE AO WAS N OT SUSTAINABLE AND THE SAME WAS CORRECTLY DELETED BY THE CIT(A). W E ARE UNABLE TO SEE ANY VALID REASON TO INTERFERE WITHOUT IMPUGNED ORDER OF CIT(A) AND HENCE, WE UPHOLD THE SAME. ITA NO. 214/DEL/2014 NATIONA L COOPERATIVE CONSUMERS FEDERATION OF INDIA 6 8. ACCORDINGLY, BOTH THE GROUND OF THE REVENUE B EING BREFT OF MERITS ARE DISMISSED. CONSEQUENTLY, APPEAL OF TH E REVENUE IS DISMISSED. 9. IN THE RESULT, APPEAL OF THE REV ENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 31/03 /2016. SD/- SD/- (O.P.KANT) (C.M.GA RG) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED: 31 / 03/2016 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ITA NO. 214/DEL/2014 NATIONA L COOPERATIVE CONSUMERS FEDERATION OF INDIA 7 DATE INITIAL 1. DRAFT DICTATED ON 30.03.2016 2. DRAFT PLACED BEFORE AUTHOR 31.03.2016 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.