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

ITA 2535/AHD/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0768 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 15-09-2014
• 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.: 2535/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. : 25 35 /AHD/201 4 ASSESSMENT YEAR S: 2008 - 09 AJAY HASMUKHLAL JARIWALA ............APPELLANT [AATPJ3690E] 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 APPEA L IS WHETHER OR NOT THE LEARNED CIT(A) WAS JUSTIFIED IN UPHOLDING THE PENALTY OF RS 2,12,132 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 TH JUNE 2014 . 2. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIAL FACTS NEED TO BE TAKEN NOTE OF. IN THE PRESENT CASE, AN ADDITION 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 SALE DOCUMENTS, BY INVOKING SECTION 50 C OF THE ACT. IT IS IN RESPECT 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 I.T.A. NO.: 2535/AHD/2014 ASSESSMENT YEARS: 2008 - 09 PAGE 2 OF 2 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 SIN CE 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 HAVE HEARD THE PARTIES AND PERUSED THE RECORDS. 4. THE IMPUGNED PENALTY, IN MY CONSIDERED VIEW, DESERVES TO BE DELETED FOR MANY R EASONS. THE FIRST AND FUNDAMENTAL REASON IS THAT WHEN THE VERY ASSESSMENT ORDER, WHICH HAS LED TO THE IMPUGNED PENALTY, ITSELF HAS 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 CASE 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 P ROVISIONS OF SECTION 50C, WHICH PRECISELY IS THE CASE HERE. RESPECTFULLY FOLLOWING THE DECISION OF DIVISION BENCH ALSO, I DELETE THE IMPUGNED PENALTY. 5. THE APPEAL IS ALLOWED. NO ORDER AS TO COSTS. PRONOUNCED 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