Shri Devenkumar A. Patel, Surat V. The Income Tax Officer, Ward-8(1), Surat

ITA 2382/AHD/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94716 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 25-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KURUL
• Assessee Lawyers: RUSHI PARIKH WITH JORAJ DHAKAN
• Keywords: Sale consideration of property below Jantri Value

Judgement Text

I.T.A. NO.2382/AHD/2014: ASSESSMENT YEAR: 2010-11 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH, AHMEDABAD. [CORAM: PRAMOD KUMAR, AM AND KUL BHARAT,JM] I.T.A. NO. 2382/AHD/2014 ASSESSMENT YEAR: 2010-11 SHRI DEVENKUMAR A. PATEL, A-15/439, PLOT NO.3, GHODIYA PEER DARGAH, TAK.KATARGAM, SURAT. ............... .....APPELLANT PAN ABBPP2106L VS. INCOME-TAX OFFICER, WARD-8(1), SURAT. . .RESPONDENT APPEARANCES BY: RUSHI PARIKH WITH JORAJ DHAKAN.....FOR THE APPELLAN T P.L. KURUL......... F OR THE RESPONDENT DATE OF CONCLUDING THE HEARING: 9 TH NOVEMBER, 2015 DATE OF PRONOUNCING THE ORDER: 16 TH NOV, 2015 O R D E R PER PRAMOD KUMAR, AM: BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HAS CHALLENGED CORRECTNESS OF THE LD. CIT(A)S ORDER DATED 23 RD JUNE, 2014 SUSTAINING THE PENALTY IMPOSED ON THE ASSESSEE UNDER SECTION 271(1 )(C) OF THE INCOME-TAX ACT, 1961 (THE ACT, HEREINAFTER) FOR THE ASSESSMENT YEAR 2010-11. 2. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIA L FACTS NEED TO BE TAKEN NOTE OF. DURING THE COURSE OF ASSESSMENT PROCEEDING S, THE ASSESSING OFFICER NOTED THAT AN ADDITION OF RS.1,17,561/- IS REQUIRED TO BE MADE TO THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE, ON ACCOUNT OF DIFFERENCE IN STATED SALE CONSIDERATION VIS-A-VIS THE STAMP DUTY VALUE I N COMPUTATION OF CAPITAL I.T.A. NO.2382/AHD/2014: ASSESSMENT YEAR: 2010-11 PAGE 2 OF 3 GAIN. THERE WAS NO INCREASE IN VALUE OF TAXABLE CAP ITAL GAINS ANY WAY SINCE THE ASSESSEE HAD MADE INVESTMENT OF RS.18,00,000/- IN REC BONDS WHICH ADEQUATELY COVERED THE STATED SALES CONSIDERATION P LUS THE ADDITION SO MADE. YET, THE ASSESSING OFFICER PROCEEDED TO EVEN IMPOSE PENALTY UNDER SECTION 271(1)(C) FOR THE FURNISHING OF INACCURATE PARTICUL ARS OF INCOME OF RS.1,17,561/- ON THE BASIS OF THIS ADDITION. WHEN P ENALTY OF RS.27,910/- WAS IMPOSED ON ACCOUNT OF FURNISHING OF INACCURATE PART ICULARS, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 4. WE FIND THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY A LARGE NUMBER OF DECISIONS OF THIS TRIBUNAL. WE MAY, IN TH IS REGARD REFER TO THE FOLLOWING OBSERVATIONS IN THE CASE OF CHIMANLAL MAN ILAL PATEL VS. ACIT (ITA NO.508/AHD/2010, ORDER DATED 22 ND JUNE, 2012):- 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IT IS A FACT THAT THE ADDITION HAS BEEN MAD E BY THE AO IN THE REVISIONARY PROCEEDINGS. THE ADDITION HAS BEEN MADE ON THE BASIS OF PROVISIONS OF SECTION 50C. IT IS NOT THE CASE OF TH E AO THAT THE ASSESSEE HAS RECEIVED CONSIDERATION OVER AND ABOVE THAN THAT DECLARED IN THE SALES DEED. THE AO HAS NOT DISPUTED THE CONSIDERATI ON RECEIVED BY THE ASSESSEE. THE ADDITION HAS BEEN MADE ON THE BASIS O F DEEMING PROVISIONS OF SECTION 50C. THE ASSESSEE HAS FURNISH ED ALL THE FACTS OF SALE, DOCUMENTS/ MATERIAL BEFORE THE AO. THE AO HAS NOT DOUBTED THE GENUINENESS OF THE DOCUMENTS/DETAILS FURNISHED BY T HE ASSESSEE. ONLY BECAUSE THE ASSESSEE AGREED TO THE ADDITIONS BECAUS E OF THE DEEMING PROVISIONS IT CANNOT BE CONSTRUED TO BE FILING OF I NACCURATE PARTICULARS ON THE PART OF THE ASSESSEE. THE ASSESSEE AGREED TO AD DITION ON THE BASIS OF VALUATION MADE BY THE STAMP VALUATION AUTHORITY CANNOT BE A CONCLUSIVE PROOF THAT THE SALE CONSIDERATION AS PER THE SALE AGREEMENT IS SEEMED TO BE INCORRECT AND WRONG. IN VIEW OF THE SE FACTS WE ARE OF THE CONSIDERED VIEW THAT PENALTY CANNOT BE LEVIED O N THE BASIS OF DEEMING PROVISION. WE ACCORDINGLY DELETE THE SAME. I.T.A. NO.2382/AHD/2014: ASSESSMENT YEAR: 2010-11 PAGE 3 OF 3 5. WE ARE IN CONSIDERED AGREEMENT WITH THE VIEW SO EXPRESSED BY THE CO- ORDINATE BENCH. RESPECTFULLY FOLLOWING THE SAME WE DELETE THE IMPUGNED PENALTY. 6. IN ANY CASE, THERE IS NO QUESTION OF ANY TAX SOU GHT TO BE EVADED ON THE FACTS OF THIS CASE AS THE ASSESSEE HAD MADE SUFFICI ENT QUALIFYING INVESTMENTS UNDER SECTION 54EC. THE ADJUSTMENT IN SALE CONSIDER ATION CANNOT BE CONSIDERED IN VACUM WHEN IT HAS NO IMPACT ON TAXABI LITY OF INCOME. FOR THIS REASON ALSO, THE PENALTY SHOULD BE DELETED. 7. IN THE RESULT, THE APPEAL IS ALLOWED. PRONOUNCED TODAY ON 16 TH DAY OF NOVEMBER, 2015. SD/- SD/- (KUL BHARAT) PRAMO D KUMAR (JUDICIAL MEMBER) (AC COUNTANT MEMBER) AHMEDABAD, THE 16 TH DAY OF NOVEMBER, 2015 COPIES TO: (1) THE APPELLANT (2) THE RESPON DENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD