Jawahar Hiralal Jethani, Pune V. Assistant Commissioner of Income-tax,

ITA 2232/PUN/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0105 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-02-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 27-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 54EC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKASH AWASTHY, JM . / ITA NO. 2232/PUN/2013 / ASSESSMENT YEAR : 2007-08 JAWAHAR HIRALAL JETHANI, C/O-RAJMATA ENTERPRISES, PLOT NO.W-417, MIDC, BHOSARI, PUNE-411026. PAN-AAOPJ4379B ....... / APPELLANT / V/S. ACIT, CIRCLE-8, PUNE. / RESPONDENT ASSESSEE BY : SHRI C.H.NANIWADEKAR REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 13.05.2019 / DATE OF PRONOUNCEMENT : 16.05.2019 / ORDER PER D.KARUNAKARA RAO, AM : THIS APPEAL BY THE ASSESSEE IS FILED AGAINST THE ORDER OF THE LD. CIT(APPEALS)-V, PUNE DATED 09.10.2013 FOR THE ASSESSMENT YEAR 2007-08. THE ISSUES RELATING TO LEVY OF PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). 2. BRIEFLY STATED FACTS INCLUDE THAT THE ASSESSEE REPORTED EARNING CAPITAL GAINS IN THE RETURN OF INCOME. THE ASSESSEE SOLD PLOTS OF LAND. THE TAXATION OF THE SAID CAPITAL GAINS AND THE RELATED HEAD OF INCOME IS THE ISSUE. THE ASSESSEE CLAIMS THE UTILIZATION OF THE SAID CAPITAL LOANS AS PER PROVISIONS U/S 54EC OF THE ACT. IN THE ASSESSMENT, THE ASSESSING OFFICER TREATED THE SAID CAPITAL GAINS AS SHORT-TERM CAPITAL GAINS (IN SHORT 2 ITA NO. 2232/PUN/2013 A.Y.2007-08 STCG) AND CONSEQUENTLY, ASSESSING OFFICER DENIED THE BENEFIT OF CLAIM OF DEDUCTION U/S 54EC OF THE ACT. THE DEDUCTION IS AVAILABLE IN RESPECT OF LTCG ONLY. IN THIS REGARD, THE SAID ADDITIONS WERE CONFIRMED BY THE CIT(A). HOWEVER, THE TRIBUNAL GRANTED RELIEF TO THE ASSESSEE AND ALLOWED THE SAID CLAIM OF NATURE OF LONG TERM CAPITAL GAINS (IN SHORT LTCG) AND ALSO ALLOWED THE CLAIM OF DEDUCTION U/S 54EC OF THE ACT. THE ORDER OF THE TRIBUNAL DATED 30.04.2019, VIDE ITA NO.650/PUN/2011 FOR AY 2007-08, IS RELEVANT. THUS, THE CLAIM OF THE ASSESSEE STANDS ALLOWED AS ON DATE. 3. IN THE BACKGROUND OF THE ABOVE, LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE PENALTY LEVIED BY THE ASSESSING OFFICER VIDE ORDER DATED 26.03.2012 U/S 271(1)(C) OF THE ACT AND CONFIRMED BY THE CIT(A) DOES NOT HAVE LEGS TO STAND AFTER SAID ORDER OF THE TRIBUNAL ON MERITS OF ADDITION. THEREFORE THE PENALTY ORDER AND THE IMPUGNED ORDER OF THE CIT(A) ARE REQUIRED TO BE DISMISSED. 4. ON HEARING BOTH THE SIDES, WE FIND THAT THE SUM OF RS.85 LACS WAS TREATED BY THE ASSESSING OFFICER AS SHORT TERM CAPITAL GAINS AGAINST THE CLAIM OF LONG TERM CAPITAL GAINS. CONSEQUENT TO THE SAID DECISION, THE ASSESSING OFFICER DENIED BENEFIT OF DEDUCTION U/S 54EC OF THE ACT WHICH IS NOT AVAILABLE IN RESPECT OF THE STCG. HOWEVER, THE ITAT DELETED THE ADDITIONS AND DECIDED THE APPEAL IN FAVOUR OF THE ASSESSEE. THE CONTENTS OF RELEVANT LINES FROM PARA 9 & 10 OF THE SAID ORDER OF THE TRIBUNAL ON MERITS ARE EXTRACTED AS UNDER TO DEMONSTRATE THE DELETION OF THE ADDITION ON MERITS:- 9. ..WE THUS, DIRECT THE ASSESSING OFFICER TO ALLOW THE SAID CLAIM ALSO IN THE HANDS OF ASSESSEE. THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE THUS, ALLOWED. 10. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. 3 ITA NO. 2232/PUN/2013 A.Y.2007-08 5. FROM THE ABOVE, IT IS EVIDENT THE ADDITIONS STAND DELETED BY THE TRIBUNAL AND CONSEQUENTLY THE LEVY OF PENALTY OF RS.23,45,863/- U/S 271(1)(C) OF THE ACT BECOMES INVALID. CONSEQUENTLY, WE FIND NO REASON TO GO INTO THE MERITS OF THE PENALTY LEVIED BY THE ASSESSING OFFICER. ACCORDINGLY, THE SOLIDATORY GROUND RAISED BY THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 16 TH DAY OF MAY, 2019. SD/- SD/- SD/- SD/- (VIKASH AWASTHY) (D.KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATED : 16 TH MAY, 2019. AMIT KUMAR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT-JAWAHAR HIRALAL JETHANI, C/O-RAJMATA ENTERPRISES, PLOT NO.W-417, MIDC, BHOSARI, PUNE-411026. 2. / THE RESPONDENT-ACIT, CIRCLE-8, PUNE. 3. THE CIT(APPEALS), PUNE. 4. THE CCIT, PUNE. 5. , , / DR, ITAT, PUNE. 6. / GUARD FILE. / BY ORDER, SENIOR PRIVATE SECRETARY , / ITAT, PUNE.