Shri Harilal R.Jariwala, Surat V. The Income Tax Officer,Ward-2(3), Surat

ITA 2351/AHD/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0772 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 21-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA HEARING CONCLUDED ON
• Assessee Lawyers: RUSHI PARIKH
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer
• Section: 50C

Judgement Text

I.T.A. NO.: 2 351 /AHD/2014 ASSESSMENT YEARS: 2008 - 09 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM ] I.T.A. NO. : 2 351 /AHD/201 4 ASSESSMENT YEAR S: 2008 - 09 HARILA L R JARIWALA , ............APPELLANT [AA QPJ6789H ] VS INCOME TAX OFFICER WARD 2(3), SURAT ... ........RESPONDENT APPEARANCES BY RUSHI PARIKH FOR THE APPELLANT O P MEENA FOR THE RESPONDENT HEARING CONCLUDED ON: 18/07/16 ORDER PRONOUNCED ON : 16 /08/16 O R D E R 1. THE SHORT ISSUE THAT I AM REQUIRED TO ADJUDICATE IN THIS APPEAL IS WHETHER OR NOT THE LEARNED CIT(A) WAS JUSTIFIED IN UPHOLDING THE PENALTY OF RS 2, 24,457 IMPOSED ON THE ASSESSEE UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2008 - 09. THE CIT(A) S ORDER, IMPUGNED IN THIS APPEAL, IS DATED 11 T H JUNE 2014. 2. LEARNED REPRESENTATIVES AGREE THAT WHATEVER IS DECIDED IN THE CASE OF CO - OWNER, I.E. AJAY HASMUKHLAL JARIWALA (ITA NO. 2535/AHD/14) - WHICH IS TAKEN AS LEAD CASE IN OUR HEARING TODAY, WILL APPLY MUTATIS MUTANDIS IN THIS CASE AS WELL. 3. VI DE MY ORDER OF EVEN DATE, I HAVE DELETED THE PENALTY IN THE CASE OF AJAY HANSMUKHLAL JARIWALA, AND, WHILE DOING, I HAVE SO OBSERVED AS FOLLOWS: 2. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIAL FACTS NEED TO BE TAKEN NOTE OF. IN THE PRESENT CASE, AN AD DITION OF RS 9,76,210 HAS BEEN MADE, IN LONG TERM CAPITAL GAINS DISCLOSED BY THE ASSESSEE, ON ACCOUNT OF ADOPTION OF VALUATION AS PER SUB - REGISTRAR OFFICE FOR THE PURPOSE OF REGISTRATION OF I.T.A. NO.: 2 351 /AHD/2014 ASSESSMENT YEARS: 2008 - 09 PAGE 2 OF 2 SALE DOCUMENTS, BY INVOKING SECTION 50 C OF THE ACT. IT IS IN RESP ECT OF THIS ADDITION THAT THE IMPUGNED PENALTY BEEN LEVIED. LEARNED CIT(A) HAS CONFIRMED THE IMPUGNED PENALTY AND THE ASSESSEE IS IN FURTHER APPEAL BEFORE ME. IN THE MEANTIME, THE ORIGINAL ASSESSMENT ORDER WAS REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR OBTAINING, AND DECIDING THE QUANTUM ADDITION ON THE BASIS OF, DVO S REPORT ON THE VALUE OF PLOT SOLD. THAT EXERCISE HAS SINCE BEEN CARRIED OUT AND THE DEEMED SALE CONSIDERATION ADOPTED UNDER SECTION 50C AT RS 16,08,000 AS AGAINST RS 24,91,704 3. I HAV E HEARD THE PARTIES AND PERUSED THE RECORDS. 4. THE IMPUGNED PENALTY, IN MY CONSIDERED VIEW, DESERVES TO BE DELETED FOR MANY REASONS. THE FIRST AND FUNDAMENTAL REASON IS THAT WHEN THE VERY ASSESSMENT ORDER, WHICH HAS LED TO THE IMPUGNED PENALTY, ITSELF HA S BEEN REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH COMPUTATION OF CAPITAL GAINS, AFTER OBTAINING, AND IN THE LIGHT OF, THE DVO REPORT, THE VERY FOUNDATION OF THE IMPUGNED PENALTY CEASES TO HOLD GOOD IN LAW. THE CALL WHETHER OR NOT IS IT A FIT C ASE FOR INITIATION OF PENALTY , IN SUCH A POSITION, IS TO BE TAKEN AFRESH IN THE APPEAL EFFECT ORDER . EVEN ON MERITS, AS HELD BY SEVERAL DIVISION BENCH DECISIONS, INCLUDING IN THE CASE OF CHIMANLAL MANILAL PATEL VS ACIT (ITA NO. 508/AHD/2010; ORDER DATED 22 ND JUNE 2012), PENALTY UNDER SECTION 271(1)(C) CANNOT BE IMPOSED IN THE CASES IN WHICH ADDITION HAS BEEN MADE BY INVOKING THE PROVISIONS OF SECTION 50C, WHICH PRECISELY IS THE CASE HERE. RESPECTFULLY FOLLOWING THE DECISION OF DIVISION BENCH ALSO, I DELETE THE IMPUGNED PENALTY. 4. THE RELATED FACTS AND CIRCUMSTANCES BEING ADMITTEDLY IDENTICAL, I SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER IN THIS CASE. THE IMPUGNED PENALTY IS, THEREFORE, DELETED. 5. THE APPEAL IS ALLOWED. NO ORDER AS TO COSTS. PRON OUNCED IN THE OPEN COURT TODAY ON 16 TH DAY OF AUGUST, 2016. SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: 16 TH DAY OF AUGUST ,2016 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD