Shri Anilkumar M. Jain, Ahmedabad V. The Dy. Commissioner of Income Tax, Circle-5(2), Ahmedabad

ITA 2455/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8025 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 28-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Reasonable cause
• Section: 273B; 143(3); 50C; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHRI ANIL M. JAIN, 221,MANEKBAUG SOCIETY, AMBAWADI, AHMEADBAD PAN: AAXPI8826G (APPELLANT) VS THE DCIT, CIRCLE - 5(2), AHMEDABAD (RESPONDENT) REVENUE BY : S H RI PRASOON KABRA , SR. D . R. ASSESSEE BY: WRITTEN SUBMISSION DATE OF HEARING : 13 - 06 - 2 018 DATE OF PRONOUNCEMENT : 25 - 06 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSES SEE S APPEAL FOR A.Y. 2004 - 05 , ARIS ES FROM ORDER OF THE CIT(A) - 5 , AHM EDABAD DATED 26 - 07 - 2016 , IN PROCEEDINGS UNDER SECTION 271(1 ) (C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1.0 THE CIT(A) ERRED IN UPHOLDING ORDER U/S 271(1)(C) FRAMED BY THE ASSESSING OFFICER. THE ORDER PASSED BY THE ASSESSING OFFICER IS BAD IN LAW SINCE IT IS CONTRARY TO THE PROVISIONS OF LAW AND THE FACTS OF YOUR APPELLANT'S CASE. IT IS SUBMITTED THAT IT BE SO HELD NOW. 2 .0 THE CIT(A) ON THE FACTS AND IN VIEW OF LAW OUGHT TO HAVE HELD THAT : - I T A NO . 245 5 / A HD/20 16 A SSESSMENT YEAR 200 4 - 05 I.T.A NO. 2455 /AHD/20 16 A.Y. 2004 - 05 PAGE NO ANILKUMAR M. JAIN VS. DCIT 2 2.1 THE ORDER PASSED BY THE ASSESSING OFFICER ON 26 MARCH, 2015 U/S 271(1)(C) IS BAD IN LAW AS THE ORDER HAS BEEN FRAMED IN VIOLATION OF PROVISIONS OF SECTIONS 274 AND 275. THE O RDER BE QUASHED. 2.2 THE ORDER PASSED U/S 271(1)(C) IS BAD IN LAW AS IT HAS BEEN FRAMED IGNORING THE FACTS IN THE CASE OF THE APPELLANT, THE SUBMISSIONS PLACED ON THE RECORDS OF THE ASSESSING OFFICER AND THE PROVISIONS OF LAW. THE ORDER IS IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE ORDER BE QUASHED. 2.3 THE ORDER U/S 271(1)(C) IS BAD IN LAW AS THERE WAS NEITHER CONCEALMENT OF INCOME NOR FURNISHING OF ANY INACCURATE PARTICULARS IN RESPECT OF EXEMPTION U/S 10(13A). EACH AND EVERY PARTICULAR IN RESPECT OF EXEMPTION WAS DISCLOSED AS PER THE PROVISIONS OF LAW AND EACH AND EVERY PARTICULAR WAS CORRECTLY FURNISHED. THE ORDER U/S 271(1)(C) IS BAD IN LAW AND BE QUASHED. THE ORDER OF THE ASSESSING OFFICER BE QUASHED. 2.4 THE ORDER U/S 271(1)(C) HAS BEEN FRAMED IN VIOLATION OF PROVISIONS OF SECTION 273B AND NOTWITHSTANDING THE FACT THAT THERE EXISTED A REASONABLE CAUSE. THE ORDER BE THEREFORE QUASHED. 3.0 THE APPELLANT WITHOUT PREJUDICE TO ABOVE FURTHER SUBMITS THAT THE PENALTY IMPOSED BY THE ASSESSING OFFICER IN ANY EVENT IS EXCESSIVELY HIGH. THE APPELLANT SUBMITS THAT PENALTY BE REDUCED. 3. THE BRIEF FACT OF T HE CASE IS THAT THE ASSESSMENT U/S. 144 R.W.S. 147 AND 24 4 OF THE ACT WAS COMPLETED ON 29 TH DECEMBER, 2011. T HE ASSESSEE HAS CLAIMED CAPITAL LOSS OF RS. 11 , 69 , 40 1 / - IN THE RETURN OF INCOME AND THE ASSESSING OFFICER HAS DISALLOWED THE LOSS TO THE EXTENT OF RS. 6 , 77 , 791/ - AFTER INVOKING PROVISION OF SEC 50C OF THE ACT . THE ASSESSING OFFICER HAS ALSO DISALLOW ED EXEMPTION U/S. 10(13A) OF THE ACT TO THE AMOUN T OF RS. 2,40,000/ - . THE ASSESSING OFFICER HAS ALSO I NITIATED PENALTY PROCEEDINGS ON BOTH THE DISALLOWANCE U/S. 271(1)(C) OF THE ACT. DURING T HE COURSE OF PENALTY PROCEEDINGS, THE ASSESSING OFFICER HAS STATED THAT LD. CIT(A) HAS CONFIRMED BOTH THE ADDITI ONS ON UNACCOUNTED EXPENSES. SUSEQUENTLY , THE IT AT HAS RESTORED THE MATTER BACK TO THE ASSESSING OFFICER FOR LIMITED PURPOSE FOR VERIFYING THE FACT OF UNACCOUNTED EXPENSES . THEREAFTER, T HE CASE WAS REOPENED AND ASSESSMENT WAS MADE U/S. 144A R.W.S. 147 O F THE ACT. A ND THE ADDITION MADE U/S. 50C AND DISALLOWANCE U/S. 10(13A) OF THE ACT W ERE SUSTAINED BY THE LD. CIT(A). THE ADDITION OF RS. 2,40,000/ - WAS MADE U/S. 10(13A) OF THE ACT PERTAINING TO EXEMPTION U/S. 10(13A) AS THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE REGARDING PAYMEN T OF RENT OF RS. 3 LACS. CONSEQUENTLY THE ASSESSING OFFICER HAS LEVIED PENALTY U/S. 271(1)(C) OF RS. 80,000 OF THE ACT. I.T.A NO. 2455 /AHD/20 16 A.Y. 2004 - 05 PAGE NO ANILKUMAR M. JAIN VS. DCIT 3 4. AGGRIEVED ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). T HE LD. CIT(A) DISMISSED THE APPEAL ON THE GRO UND THAT THE ASSESSEE HAS FAILED TO MAKE COMPLIANCE IN APPELLATE PROCEEDINGS IN SPITE OF GIVING SEVERAL OPPORTUNITIES BY THE LD. CIT(A). DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, T HE LD. COUNSEL HAS SUBMITTED WRITTEN SUBMISSION STATING THAT THERE WAS NEITHER ANY CONCEALMENT NOR FURNISH ING OF ANY INACCURATE PARTICULARS OF INCOME. THE PENALTY IMPOSED BY T H E ASSESSING OFFICER IS BAD IN LAW. HE HAS FURTHER SUBMITTED T HAT THE ISSUE REGARDING HOUSEHOLD EXPENSES AND THE PAYMENT OF RENT WAS EXAMINE D BY THE ASSESSING OFFICER DURING THE PROCEEDING S U/S. 143(3) AND THE MATER TRAVELLED UP TO IT AT IN CONNECTION WITH T H E ADDITION OF HOUSEHOLD EXPENSES. HE FURTHER STATED THAT ISSUE OF ADDITION U/S. 10(13A) HAD NOT DIRECTLY ARISEN BEFORE T H E ITAT. ON THE OTHER HAND , THE LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF LOWER AUTHO RITIES . AFTER HEARING DEPARTMENTAL REPRESENTATIVE AND PERU S AL OF WRITTEN SUBMISSION OF T HE ASSESSEE AND MATERIAL ON RECORD WE CONSIDER IT WILL BE APPROPRIATE TO RES TORE THIS CASE TO T H E FILE OF LD. CIT(A) FOR DECID ING IT ON MERIT. ACCORDINGLY , T HE CASE IS SET ASIDE TO THE FILE OF LD. CIT(A) TO DECIDE IT AFRESH AND THE ASSESSEE IS DIRECTED TO MAKE COMPLIANCE TO THE APPELLATE PROCEEDINGS WITHOUT ANY FURTHER DEFAULT. THEREF ORE THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 25 - 06 - 201 8 SD/ - SD/ - (MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 25 /06 /2018 / COPY OF ORDER FORWARDED TO: - I.T.A NO. 2455 /AHD/20 16 A.Y. 2004 - 05 PAGE NO ANILKUMAR M. JAIN VS. DCIT 4 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, I TAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,