Shri Jivraj Popatbhai Rabadiya, Surat V. The Income Tax Officer, Ward-9(2), Surat

ITA 2536/AHD/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1236 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 15-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL SRDR
• Keywords: Sale consideration of property below Jantri Value; Deemed to accrue or arise in india
• Section: 50C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.2536/AHD/2014 ( / ASSESSMENT YEAR : 2007-08) SHRI JIVRAJ POPATBHAI RABADIYA 544/208/209, RAVI APPT. 208, SUPER DIAMOND MARKET MINI BAZAR VARACHHA ROAD, ROAD / VS. THE ITO WARD-9(2) SURAT ./ ./ PAN/GIR NO. : AEQPR 9385 F ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI JAYRAJ P.DHAKAN WITH RUSHI J. PAREKH #' % $ / RESPONDENT BY : SHRI P.L. KUREEL, SR.DR &'( % ) / DATE OF HEARING 10/11/2015 *+, % ) / DATE OF PRONOUNCEMENT 23/11/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-V, SURAT [CIT(A) IN SHORT] DATED 18/07/2014 PERTAINING TO ASSESSMENT YEAR (AY) 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEA L:- ITA NO.2536 /AH D/2014 SHRI JIVRAJ POPATBHAI RABADIYA VS. ITO ASST.YEAR 2007-08 - 2 - 1. THAT THE CIT(A) ERRED IN CONFIRMING PENALTY OF RS. 96,750/- U/S.271(1)(C) FOR ADDITION OF DEEMED INCOME U/S.50C . 2. THAT THE CIT(A) ERRED IN NOT FOLLOWING THE JURISDIC TIONAL ITAT JUDGEMENTS IN CASE OF ADDL.CIT VS. CHIMANLAL MANILA L PATEL ITA NO.508/AHD/2010 & HARESH P.SHAH VS. ITO ITA NO.2154 /AHD/2010. AND ALSO NOT FOLLOWING THE NUMBER OF JUDGEMENTS CIT ED IN THE SUBMISSION GIVEN TO CIT(A). 3. THAT THE PENALTY LEVIED & CONFIRMED OF RS.96,750/- U/S.271(1)(C) MAY KINDLY BE DELETED. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, DE LETE/CHANGE OR MODIFY ANY OR ALL THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS TH E ACT) WAS FRAMED VIDE ORDER DATED 14/12/2009. WHILE FRAMING THE ASS ESSMENT, THE ASSESSING OFFICER (AO IN SHORT) MADE ADDITION TO TH E TUNE OF RS.3,43,300/- BY INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT. THE AO ALSO INITIATED THE PENALTY PROCEEDINGS U/S.271(1 )(C) OF THE ACT. SUBSEQUENTLY, THE AO PASSED A PENALTY ORDER U/S.271 (1)(C) OF THE ACT VIDE ORDER DATED 15/12/2015; THEREBY THE AO IMPOSED PENALTY OF RS.96,749/- ROUNDED TO RS.96,750/-. THE ASSESSEE BEING AGGRIEVED BY THE PENALTY ORDER, PREFERRED AN APPEAL BEFORE THE L D.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE CONFIRM ED THE PENALTY AND DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED B Y THE ORDER OF THE LD.CIT(A), NOW THE ASSESSEE IS FURTHER IN APPEAL BE FORE US. ITA NO.2536 /AH D/2014 SHRI JIVRAJ POPATBHAI RABADIYA VS. ITO ASST.YEAR 2007-08 - 3 - 3. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT D URING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO HAS NOT QUESTIONED T HE ACTUAL SALE CONSIDERATION RECEIVED BY THE ASSESSEE BUT THE ADDI TION IS PURELY MADE ON DEEMING FICTION U/S.50C OF THE ACT. HE SUBMITTED T HAT THE AO HAS NOT GIVEN ANY FINDING THAT THE ACTUAL SALE CONSIDERATIO N IS MORE THAN THE SALE CONSIDERATION RECORDED IN SALE-DEED. THE LD.COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS FURNISHED ALL THE D ETAILS, DOCUMENTS, FACTS INCLUDING SALE DEED THE GENUINENESS AND VALIDITY OF THE SAME IS NEVER DOUBTED BY THE AO. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT UNDER THE IDENTICAL FACTS, THE PENALTY HAS BEEN DELETED B Y THE COORDINATE BENCH OF THIS TRIBUNAL (ITAT SMC AHMEDABAD) IN THE CASE OF SHRI HARESH P.SHAH VS. ITO IN ITA NO.2154/AHD/2010 FOR AY 2006- 07, DATED 08/07/2010. THE LD.COUNSEL FOR THE ASSESSEE FURTH ER SUBMITTED THAT THE COORDINATE BENCH (ITAT D BENCH AHMEDABAD) IN THE CASE OF SHRI CHIMANLAL MANILAL PATEL VS. ACIT IN ITA NO.508/AHD/ 2010 FOR AY 2006-07, DATED 22/06/2012, HAS ALSO DELETED THE PEN ALTY. HE FURTHER PLACED RELIANCE ON THE JUDGEMENT OF HONBLE HIGH CO URT AT CALCUTTA IN THE CASE OF CIT KOL-IV VS. MADAN TEATRES LTD. IN GA NO.684 OF 2013(ITAT NO.62 OF 2013), DATED 14/05/2013. 3.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THERE IS NO ILLEGALITY IN THE ORDERS OF THE AUTHORITIES BELOW. ITA NO.2536 /AH D/2014 SHRI JIVRAJ POPATBHAI RABADIYA VS. ITO ASST.YEAR 2007-08 - 4 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENT/DECISIONS RELIED UPON BY T HE LD.COUNSEL FOR THE ASSESSEE. THE UNDISPUTED FACT REMAINS THAT THE PEN ALTY HAS BEEN LEVIED ON THE ADDITION MADE BY INVOKING THE PROVISIONS OF SEC TION 50C OF THE ACT. THERE IS NO FINDING BY THE AO THAT THE ASSESSEE HAS CONCEALED ANY INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E. MOREOVER, THE AO HAS NOT BROUGHT ON RECORD ANY EVIDENCE SUGGESTING T HAT THE ACTUAL SALE CONSIDERATION WAS HIGHER THAN THE DECLARED CONSIDER ATION. UNDER THESE FACTS, WE ARE OF THE CONSIDERED VIEW THAT THE AO WA S NOT JUSTIFIED IN LEVYING THE PENALTY. UNDER THE IDENTICAL FACTS, TH E COORDINATE BENCH IN THE CASE OF SHRI HARESH P.SHAH VS. ITO (SUPRA) AND IN THE CASE OF SHRI CHIMANLAL MANILAL PATEL VS. ACIT (SUPRA) HAVE DELET ED THE PENALTY. THEREFORE, TAKING A CONSISTENT VIEW, WE HEREBY DIRE CT THE AO TO DELETE THE PENALTY AND GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 23 RD DAY OF NOVEMBER, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23/ 11 /2015 0)..& , '.&../ T.C. NAIR, SR. PS ITA NO.2536 /AH D/2014 SHRI JIVRAJ POPATBHAI RABADIYA VS. ITO ASST.YEAR 2007-08 - 5 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-V, SURAT 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 17.XI.15 (DICTATION-PAD 6- PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..18.XI.15 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. 23.11.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.11.15 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