Late Harpalsingh G. Tank By his legal heir Mr. Prempalsingh H. Tank, Surat V. The ACIT, Circle-7, Surat

ITA 2578/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6069 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 01-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL AR MS RICHA RASTOGI
• Keywords: Revised return
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI R. P. TOLANI, VICE PRESIDE NT & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 2578/AHD/2013 (ASSESSMENT YEAR: 2007-08) LATE HARPALSINGH G. TANK BY HIS LEGAL HEIR MR. PREMPALSINGH H. TANK, C/O SARDAR JANTA RESTAURANT, OPP: RAILWAY STATION, SURAT V/S THE A.C.I.T. CIRCLE-7, SURAT (APPELLANT) (RESPONDENT) PAN: ABDPT1129K APPELLANT BY : SHRI M. K. PATEL, AR RESPONDENT BY : MS. RICHA RASTOGI, SR. D.R. ( )/ ORDER DATE OF HEARING : 13 -04-201 7 DATE OF PRONOUNCEMENT : 28-04-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. AGGRIEVED BY THE ORDER OF THE LD. CIT(A)-V, SURAT D ATED 05.09.2013 FOR A.Y. 2007-08, THE ASSESSEE HAS PREFERRED THIS APPEAL RAI SING ONLY ONE ITA NO. 2578 /AHD/2013 . A.Y. 2007-0 8 2 CONTENTIOUS GROUND RELATING TO THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT AMOUNTING TO RS. 8,15,246/-. 2. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 21.12.2012 MADE U/S. 143(3) R.W.S. 147 OF THE ACT. 3. IN THIS CASE, THE ORIGINAL ASSESSMENT WAS FRAMED U/ S. 143(3) OF THE ACT VIDE ORDER DATED 31.12.2009. IN THIS RETURN OF INCOME, T HE ASSESSEE HAD SHOWN LONG TERM CAPITAL GAIN OF RS. 5.79 LACS BEING 25% S HARE IN THE PROPERTY SOLD BY ADOPTING COST AT RS. 36 LACS AS ON 01.04.1981. 4. SUBSEQUENTLY, IT CAME TO THE NOTICE OF THE A.O. THA T EXCESSIVE INDEXATION BENEFIT HAD BEEN CLAIMED BY THE ASSESSEE. ACCORDING LY, THE ASSESSMENT WAS REOPENED AND IN THE REVISED COMPUTATION OF INCOME, THE ASSESSEE HAD SHOWN LONG TERM CAPITAL GAIN OF RS. 42.12 LACS. 5. IT WAS EXPLAINED BY THE ASSESSEE: FOR LONG TERM CAPITAL GAIN ARISED FROM SALE OF RESI DENTIAL HOUSE PROPERTY JOINTLY HELD WITH OTHER FOUR CO-OWNERS AND EVIDENCE IN RESP ECT OF THIS INCOME HAD ALREADY BEEN FURNISHED AT THE TIME OF SCRUTINY ASSE SSMENT FOR ORIGINAL RETURN FILED FOR A.Y. 2007-08. WHILE FILING THE REVISED RETURN O F INCOME FOR WORKING OF CAPITAL GAIN, WE HAVE CONSIDERED THE REVISED COST OF ACQUIS ITION AS ON 01.04.1981 AS PER DECISION OF ITAT, 'C' BENCH, AHMEDABAD IN CASE OF SMT . JOGINDERKAUR G. TANK (APPEAL NO.ITA N0.1627/AHD/2010) DATED 24.12.2010 W HICH WAS RS.8,00,000/- AND ACCORDINGLY ASSESSEE'S SHARE AMOUNT COMES TO RS .2,00,000/- AT 25%. THE ITA NO. 2578 /AHD/2013 . A.Y. 2007-0 8 3 INDEX COST OF RS.10,38,000/- WAS WORKED OUT ACCORDI NGLY. XEROX COPY OF THE SAID APPELLATE ORDER IS ENCLOSED HEREWITH FOR YOUR READY REFERENCE.' 6. THE REVISED COMPUTATION OF CAPITAL GAINS AT RS. 42. 12 LACS WAS ACCEPTED BY THE A.O. BUT PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT WERE SIMULTANEOUSLY INITIATED FOR CONCEALMENT OF INCOME AS THE REVISED COMPUTATION OF CAPITAL GAIN WAS FILED BY THE ASSESS EE SUBSEQUENT TO THE ISSUE OF NOTICE U/S. 148 OF THE ACT. 7. THE A.O. COMPUTED THE PENALTY AT RS. 8,15,246/-. 8. BEING UNSUCCESSFUL BEFORE THE FIRST APPELLATE AUTHO RITY, THE ASSESSEE IS BEFORE US. AFTER UNDERSTANDING THE FACTS OF THE CAS E, THE BENCH ASKED THE REPRESENTATIVES OF BOTH SIDES REGARDING THE FATE OF PENALTY IN THE HANDS OF OTHER CO-OWNERS. REPRESENTATIVES OF BOTH SIDES COUL D NOT ANSWER THE BENCH. AS MENTIONED ELSEWHERE, THE FAIR MARKET VALU E AS ON 01.04.1981 WAS THE BONE OF CONTENTION FOR THE ISSUE OF NOTICE U/S. 148 OF THE ACT AND THE ASSESSMENT HAS BEEN FRAMED AS PER THE DECISION OF ITAT IN ITA NO. 1627/AHD/2010. SINCE BOTH SIDES COULD NOT FURNISH T HE DETAILS IN THE CASES OF CO-OWNERS, WE DEEM IT FIT TO RESTORE THE ISSUE T O THE FILES OF THE A.O. THE A.O. IS DIRECTED TO VERIFY STATUS OF PENALTY IN THE HANDS OF THE CO-OWNERS BECAUSE THE FACTS ARE IDENTICAL IN THE HANDS OF ALL THE CO-OWNERS. NEEDLESS TO MENTION, THE A.O. WILL GIVE A REASONABLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. ITA NO. 2578 /AHD/2013 . A.Y. 2007-0 8 4 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 28 - 04- 20 17 SD/- SD/- (R. P. TOLANI) (N. K. BILLAIYA) VICE PRESIDENT TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 28 /04/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD