Shri Balwant T.Patel, Ahmedabad V. The Income tax Officer,Ward-13(4), Ahmedabad

ITA 2485/AHD/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72831 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 06-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MISHRA JDIT
• Assessee Lawyers: S N DIVETIA
• Keywords: Revised return

Judgement Text

, , , , SMC, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, SMC BENCH . .. . . .. . , !' # ' !' # ' !' # ' !' # ' BEFORE SHRI G.C. GUPTA, VICE-PRESIDENT ITA NO.2485/AHD/2012 [ASSTT.YEAR : 2009-2010] BALWANT T. PATEL 6, SNEH APARTMENT NR. MIRAMBIKA SCHOOL ROAD NARANGPURA, AHMEDABAD 380 013. PAN : ATMPP 5372 R /VS. ITO, WARD-13(4) AHMEDABAD. ( (( (%& %& %& %& / APPELLANT) ( (( ('(%& '(%& '(%& '(%& / RESPONDENT) )* + , #/ ASSESSEE BY : SHRI S.N. DIVETIA . + , #/ REVENUE BY : SHRI D.K. MISHRA, JDIT / + *01/ DATE OF HEARING : 2 ND DECEMBER, 2013 234 + *01/ DATE OF PRONOUNCEMENT : 10-1-2014 #5 / O R D E R THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-XV, AHM EDABAD DATED 16.8.2012. 2. ONLY GROUND OF APPEAL OF THE ASSESSEE IS AS UNDE R: 1. THE LD.CIT(A) HAS GRIEVOUSLY ERRED ON FACTS AND IN LAW IN DISMISSING THE APPEAL FILED BY THE APPELLANT AGAINST THE PENALTY LEVIED U/S.271(1)(C) BY THE AO AND THER EBY ERRED IN CONFIRMING THE PENALTY ORDER. ITA NO.2485/AHD/2012 -2- 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ONLY ISSUE IN THIS APPEAL IS REGARDING VALIDITY OF PENAL TY IMPOSED U/S.271(1)(C) OF THE ACT AMOUNTING TO ` 57,000/-. HE SUBMITTED THAT THE ASSESSEE ALONG WITH 26 OTHER CO-OWNERS OF THE AGRICULTURE LAND HAD SOLD THE LAND IN QUESTION, AND THE LONG TE RM CAPITAL GAIN ARISING WAS DISCLOSED IN THE CASE OF WIFE OF THE AS SESSEE, SMT. BINABEN BALWANT PATEL. HOWEVER, LATER ON IT WAS DI SCOVERED THAT BONA FIDE INADVERTENT MISTAKE WAS CREPT IN NOT SHOWING CAPIT AL GAIN IN THE CASE OF THE ASSESSEE, AND THEREFORE, A VALID REVISED RETURN WAS FILED BY THE ASSESSEE ON 25.3.2011, WITH IN THE TIME AND THE TAX WAS ALSO PAID. HE SUBMITTED THAT SIMULTANE OUSLY A REVISED RETURN WAS FILED IN THE CASE OF WIFE, SMT. BINABEN B. PATEL DELETING THE SAID LONG TERM GAIN AT ` 3,39,295/-. HE REFERRED TO THE QUESTIONNAIRE OF THE AO DATED 3.1.2011 WHEREIN ONLY THE SOURCE OF THE SAID AMOUNT WAS ASKED AND NOT THE TAXABILITY THEREOF IN THE HANDS OF THE ASSESSEE. HE SUBMITTED THAT THE REV ISED RETURN WAS FILED VOLUNTARILY AND THE BONA FIDE BELIEF HAS BEEN ACCEPTED BY THE ASSESSEE, AND THEREFORE, NO PENALTY UNDER SECTION 2 71(1)(C) OF THE ACT WAS LEVIABLE ON THE ASSESSEE. 4. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL OF THE ASSESSEE. HE SUBMITTED THAT THE MIS TAKE WAS DETECTED BY THE REVENUE, AND THEREFORE, PENALTY WAS RIGHTLY LEVIED BY THE ASSESSEE. HE REFERRED TO RELEVANT PA RAS OF THE APPELLATE ORDER PASSED BY THE LEARNED CIT(A). ITA NO.2485/AHD/2012 -3- 5. I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). I FIND THAT THE ASSESSEE HA S SHOWN LONG TERM CAPITAL GAIN IN THE HANDS OF HIS WIFE AND HAS ALSO PAID TAX THEREOF. QUESTION NO.10 IN QUESTIONNAIRE DATED 3.1.2011 ISSU ED BY THE AO HAS MERELY ASKED FOR THE SOURCE OF THE LAND IN QUESTION AND DOES NOT AMOUNT TO DETECTION ON THE PART OF THE REVENUE. TH E ASSESSEE HAVING REALIZED HIS MISTAKE HAS FILED REVISED RETURN OF IN COME WELL WITHIN THE TIME LIMIT PROVIDED UNDER THE ACT, AND HAS DISCLOSE D THE CAPITAL GAIN AND HAS ALSO PAID TAX THEREON, AND SIMULTANEOUSLY T HE RETURN OF WIFE IS ALSO REVISED DELETING THE SAID CAPITAL GAIN AMOUNT IN HER HAND. THE EXPLANATION OF THE ASSESSEE IS BONA FIDE AND THERE IS NO MATERIAL BEFORE ME TO ESTABLISH THAT THE ASSESSEE HAS COMMITTED ANY DEFAULT AS PRESCRIBED UNDER SECTION 271(1)(C) OF THE ACT. IN THIS VIEW OF THE MATTER, THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT IS DELETED AND THE GROUND OF THE APPEAL OF THE ASSESSEE IS ALL OWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD