ACIT, Cir 6, V. Samant Estates Private Limited,

ITA 257/PUN/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3215 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 12-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMANTKUMAR C LEUVA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C.SUDHIR JM AND SHRI D. KARUNAKARA RA O AM I.T.A. NO. 257/PN/2010 (ASSTT. YEAR :2004-05 ) ASSTT. COMMISSIONER OF INCOME TAX APPELLANT CIRCLE 6, PUNE VS. SAMANT ESTATES PRIVATE LIMITED RESPONDENT 43 B GOLDFEILD PLAZA SASSOON ROAD, PUNE 1. PAN : AABCS4218A APPELLANT BY : SHRI HEMANTKUMAR C. LEUVA RESPONDENT BY : NONE ORDER PER D. KARUNAKARA RAO, AM THE REVENUE HAS QUESTIONED THE FIRST APPELLATE ORD ER ON SEVERAL GROUNDS AGAINST THE ACTION OF THE LD CIT(A) IN DELETING TH E PENALTY LEVIED U/S. 271(1)(C ) OF THE ACT. PENALTY IN QUESTION RELATES TO THE ADDITI ON OF SALE PRICE OF FLATS. AS PER THE A.O, THE SALE PRICE SHOULD HAVE BEEN AS PER THE GOV ERNMENT VALUER. A.O REJECTED THE ASSESSEES EXPLANATION THAT THE IMPUGNED FLATS WERE SOLD FOR LESSER PRICE DUE TO DISTRESS SALES. 2. IN SUPPORT OF THE GROUND, THE LD. D.R. HAS BASIC ALLY PLACED RELIANCE ON THE PENALTY ORDER. THERE WAS NONE FOR ASSESSEE. 3. HAVING GONE THROUGH THE ORDERS OF THE LOWER AUTH ORITIES, IN VIEW OF THE ARGUMENTS ADVANCED BY THE LD. D.R., WE FIND THAT DU RING THE COURSE OF ASSESSMENT PROCEEDINGS, A.O FOUND THAT THE ASSESSEE HAS SOLD FLATS IN A BUILDING AT A PRICE BELOW THE MARKET PRICE OR GOVERNMENT VALUATION. T HE A.O, THUS, REJECTED THE SALE PRICE DECLARED BY THE ASSESSEE AND ADOPTING THE GOV ERNMENT VALUATION AS SALE PRICE MADE THE ADDITION OF RS. 31,93,440/-. ON THIS ADDI TION, PENALTY HAS BEEN LEVIED U/S. 271(1)(C ) AT RS. 9,13,850/-. THE LD CIT(A) HAS DE LETED THE PENALTY WITH THIS ITA NO. 257/PN/2010 (SAMANT ESTATES P. LT.) (ASSSTT.YEAR 2004-05 ) , 2 OBSERVATION THAT ASSESSEE HAS EXPLAINED THE CIRCUMS TANCES UNDER WHICH IT WAS COMPELLED TO MAKE DISTRESS SALE OF THE TWO FLATS A ND SECONDLY, THE ADDITION MADE BY THE A.O ON ACCOUNT OF DIFFERENCE IN THE SALE VALUE IS BASED TOTALLY ON HIS SURMISES AND CONJECTURES THAT THESE FLATS HAVE ACTUALLY BEEN SOLD AT VALUE HIGHER THAN THAT SHOWN BY THE ASSESSEE. THE LD CIT(A) HAS FURTHER OBSERVED THAT WHILE MAKING THE ADDITION, THE A.O HAS NOT BROUGHT ANY MATERIAL ON R ECORD TO SUBSTANTIATE ITS PRESUMPTION THAT THE FLATS HAVE ACTUALLY BEEN SOLD AT VALUE HIGHER THAN THAT SOLD BY THE ASSESSEE. UNDER THESE MATERIAL FACTS AND CIRCU MSTANCES, WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS RIGHTLY DELETED THE PENALTY IN QUESTION. WE FIND DEBATABILITY ON THE ISSUES AND THERE IS NO POSITIVE FINDING WITH THE REVENUE, WHICH PROVES BEYOND THE DOUBT THAT THE ASSESSEE HAD CONCEALED PARTICULA RS OF INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF. IN THESE CIRCUMSTA NCES, PENALTY U/S. 271(1)(C ) CANNOT BE LEVIED. WE ARE THUS NOT INCLINED TO INTE RFERE THE FIRST APPELLATE ORDER IN THIS REGARD. THE GROUND IS, ACCORDINGLY, REJECTED. 4. CONSEQUENTLY, THE APPEAL IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON OCTOBE R, 2010 SD/- SD/- (I.C.SUDHIR) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTAN T MEMBER PUNE DATED THE 28 TH OCTOBER , 2010 THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28-10- 2010 SD/- SD/- (G.S.PANNU) (I.C. SUDHIR) A.M. J.M. US COPY OF THE ORDER IS FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A)- III, PUNE 4. CIT -III, PUNE 5. D.R. ITAT B BENCH 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, PUNE BENCHES, PUNE