The DCIT, Circle-3(3), Ahmedabad V. Shri Pravinbhai Jivabhai Patel, Ahmedabad

ITA 238/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1660 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 03-05-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 01-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P CHAUDHARY
• Keywords: Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER ./ ITA NO.238/AHD/2016 / ASSESSMENT YEAR: 2011-12 DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-3(3) AHMEDABAD .. APPELLANT PAN : AAWPP 5134 G VS SHRI PRAVINBHAI JIVABHAI PATEL 02, HOUSING AROUND BALMANDIR BODAKDEV NR.JAMBHUVAN FLAT DASKROI, AHMEDABAD .. RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI O.P. CHAUDHARY, SR.DR / DATE OF HEARING 03/05/2016 /DATE OF PRONOUNCEMENT 06/05/2016 / O R D E R THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE OR DER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-3, AHM EDABAD DATED 26/11/2-15 FOR ASSESSMENT YEAR 2011-12, ON THE FOLLO WING GROUNDS:- 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS DELETING THE PENALTY OF RS.14,66,947/- MADE U/S.271(1)(C) OF THE ACT. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS BY NOT APPRECIATING THE FACTS THAT THE ADDITION IS BASED ON THE DVOS REPORT. 2. NONE APPEARED ON BEHALF OF THE RESPONDENT-ASSESSE E NOR ANY APPLICATION HAS BEEN FILED BEFORE THIS TRIBUNAL. THE LD. SR.DEPARTMENTAL REPRESENTATIVE FAIRLY SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN ALLOWING THE ASSESSEES CLAIM A ND THE MATTER MAY ITA NO.238/AHD2016 DCIT VS. SHRI PRAVINBHAI JIVABHAI PATEL AY : 2011-12 2 BE REMITTED BACK TO THE FILE OF LD.CIT(A) FOR DECISION AFRESH IN ACCORDANCE WITH LAW. 3. I HAVE HEARD THE LD.SR.DR AND PERUSED THE MATERIA L ON RECORD AND PROCEED TO DECIDE THE CASE ON MERITS. ON PERUSIN G THE GROUNDS OF APPEAL RAISED BY THE REVENUE, I FIND THAT FROM THE ORDER OF THE LD.CIT(A) WHILE DECIDING THE CASE, HE NARRATED THAT TH E ASSESSING OFFICER (AO) IMPOSED THE PENALTY U/S.271(1)(C) OF TH E ACT, 1961 AFTER CONSIDERING THE SUBMISSIONS MADE BY THE APPELLANT. A COPY OF ORIGINAL RETURN OF INCOME FILED ON 23.02.2012 HAVE B EEN KEPT ON RECORD AND PERUSAL OF THE SAME INDICATES THAT IMPUGNED LAND SALE HAVE BEEN SHOWN IN THE ENCLOSURE DEPICTING WORKING O F CAPITAL GAINS. THE QUESTION YEAR HAS BEEN SHOWN AS 1981-82. THE L D.CIT(A) HAS EXAMINED THE FACTS CONTAINED IN ASSESSMENT ORDER AND FO UND THAT THE ADDITION IS DUE TO THE VALUATION REPORT OF DVO RELATI NG TO SALE OF ASSET WHICH WAS ALREADY DISCLOSED IN THE ORIGINAL RETU RN OF INCOME. 4. I BELIEVE THAT NO NEW ASSET OR TRANSACTION HAS BEEN U NEARTHED BY THE ASSESSEE DURING POST-FILING OF RETURN OF INCOME T HROUGH ANY INDEPENDENT ENQUIRY. HOWEVER, THE AO DID NOT ALLOW T HE ASSESSEES CLAIM AS PER DVOS REPORT. THE DISALLOWANCE OF AS SESSEES CLAIM WOULD NOT BE A VALID GROUND TO IMPOSE PENALTY U/S.27 1(1)(C) OF THE ACT. THE AO HAS NOT BROUGHT ON RECORD ANY INDEPEND ENT EVIDENCES COLLECTED THOUGH ENQUIRY DURING THE ASSESSMENT PROCEE DINGS. THE CLAIM OF THE ASSESSEE WAS ALREADY EXISTING ON THE DAY RETURN OF INCOME FILED WITH THE ASSESSEE. THE AO HAS NOT ESTABL ISHED THAT THERE WAS A NON-GENUINE TRANSACTION. PENALTY PROCEED INGS AND QUANTUM PROCEEDINGS ARE TWO DIFFERENT AND DISTINCT PR OCEEDINGS. LOOKING TO THE TOTALITY OF THE FACTS OF THE CASE, I AM OF THE VIEW THAT ITA NO.238/AHD2016 DCIT VS. SHRI PRAVINBHAI JIVABHAI PATEL AY : 2011-12 3 THE LD.CIT(A) WAS JUSTIFIED IN DELETING THE PENALTY OF RS.14,66,947/- MADE U/S.271(1)(C) OF THE ACT. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE COURT ON 6TH MAY, 20 16 AT AHMEDABAD. SD/- ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 6 /05/2016 .., .../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT. 3. '#'$ % % & / CONCERNED CIT 4. % % & ( ) / THE CIT(A)- 5. )*+ $ , % $ , # / DR, ITAT, AHMEDABAD 6. +/ 0 / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !', / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 4.5.16 (DICTATION-PAD 5 PA GES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..5.5.16 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.6.5.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 6.5.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER