Sudha Jajodia, New Delhi V. ACIT, Central Circle- 8, New Delhi

ITA 2602/DEL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4927 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 26-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: V K JAIN
• Keywords: Capital asset; Principle of natural justice; Maximum Marginal Rate; Question of law
• Section: 271(1)(c); 143(3); 54B; 153A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I.2, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO. 2602/DEL/2019 A.Y. : 2007-08 SUDHA JAJODIA 108, ANSAL BHAWAN, 16, K.G. MARG, NEW DELHI (PAN: AELPJ4511N) VS. ACIT, CC-8, 3 RD FLOOR ARA CENTRE, JHANDEWALAN EXTENSION, NEW DELHI 110 055 (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. V.K. JAIN, ADV. DEPARTMENT BY : SH. SURENDER PAL, SR. DR. ORDER PER H.S. SIDHU : JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE IMPUG NED ORDER DATED 24.12.2019 PASSED BY THE LD. CIT(A)-24, NEW DE LHI ON THE FOLLOWING GROUNDS:- 1. THE CIT(A) ORDER, CONFIRMING THE PENALTY, LEVIED RS. 40,26,976/- U/S. 271(1)(C) OF THE ACT, BY THE AO IS BAD IN LAW, WRONG ON FACTS AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. THE APPELLANT HAS NOT FURNISHED INACCURATE PARTICULA RS OF ITS INCOME OR CONCEALED ITS INCOME WITH THE INTENTION OF SUPPRESSING THE TAXABLE INCOME AND THEREFORE PROVISIONS OF SECTION 271(1)(C) OF THE ACT, ARE NOT ATTRACTED AT ALL. 3(A) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF T HE CASE IN CONFIRMING THE PENALTY OF RS. 40,20,276/- ON RS. 179,16,125/- WHICH COMPRISES OF LONG TERM CAPITAL GAINS OF RS. 1,78,84,855/- AND AGRICULTURE INCOME OF 2 RS. 31,270/-, IGNORING THE SUBMISSIONS, EXPLANATIONS AND DOCUMENTS FILED BEFORE HIM. (B) THE LD. CIT(A) HAS ERRED ON THE FACTS IN NOT APPRECIATING THAT IN THE ORIGINAL ASSESSMENT ORDER U/S. 143(3) DATED 30.12.2009 OF THE ACT DEDUCTION OF RS. 1,45,00,000/- WAS ALLOWED TO THE APPELLANT U/S. 54B O F THE ACT OUT OF TOTAL DEDUCTION OF RS. 1,78,84,855/- CLAIMED IN THE RETURN OF INCOME. THE APPELLANT HAD NEVER CONTENDED THAT AGRICULTURE LAND IS NOT A CAPITAL ASSET. THE AGRICULTURE LAND WAS DECLARED AS CAPITAL ASSET AND DEDUCTION U/S. 54B OF THE ACT WAS CLAIMED IN ACCORDANCE WITH SECTION 45 R.W.S. 48 OF THE ACT. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS O F THE CASE WHILE CONFIRMING THE PENALTY ON LTCG OF RS. 1,78,84,855/- HAS FAILED TO APPRECIATE THAT WERE A SUBSTANTIAL QUESTION OF LAW IS ADMITTED BEFORE HIGH COURT, IT MEANS THAT THERE IS A DEBATABLE POSITION AN D HENCE PENALTY CANNOT BE LEVIED. 4(A).THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACT S OF THE CASE IN CONFIRMING THE PENALTY ON AGRICULTURE INCOME AMOUNTING TO RS. 31,270/- ASSESSED AS INCOME FROM OTHER SOURCES IN THE ASSESSMENT ORDER U/S. 153A R.W.S. 143(3) OF THE ACT ON THE GROUNDS THAT THE APPELLANT HAS FURTHER FAILED TO PRODUCE DOCUMENTARY EVIDENCES IN RESPECT OF AGRICULTURE EXPENSES INCURRED BY THE APPELLANT. THE LD. CIT(A) HAS FAILED TO APPRECIAT E THE EXPLANATION AND DOCUMENTARY EVIDENCES FILED BY THE APPELLANT IN SUPPORT OF AGRICULTURE INCOME LIKE KHASRA GIRDWARI ETC. (B) THE LD. CIT(A) HAS ERRED ON LAW AND ON THE FACTS IN NOT APPRECIATING THE FACT THAT THE APPELLANT AT THE TIME OF FILING OF INCOME TAX RETURN HAS ALREADY PAID TAX AT MAXIMUM MARGINAL RATE ON AGRICULTURE INCOME A T RS. 9,381/- AND HAS ONLY CLAIMED REBATE OF TAX, OF RS. 4,754/- WHILE COMPUTING THE TAX PAYABLE WHEREAS THE AGRICULTURE INCOME OF RS. 31,270/- HAS ALREADY BEEN DECLARED IN THE RETURN. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, FORE GO OR DELETE ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT D ISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE, HAS STATED THAT ITAT VIDE ITS ORDER DATED 28.5.2019 IN QUANTUM APPE AL NO. 4017/DEL/2016 (AY 2007-08) HAS DELETED THE ENTIRE ADDITIONS ON WHI CH THE PENALTY IN DISPUTE HAS BEEN IMPOSED. IN THIS BEHALF HE FILED THE COPY OF THE TRIBUNALS ORDER DATED 28.5.2019 IN ASSESSEES OWN CASE AND HE REQUE STED THAT PENALTY IN DISPUTE MAY BE DELETED. 4. ON THE CONTRARY, LD. DR HAS NOT RAISED ANY SERIOUS OB JECTION ON THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSE D THE RECORDS. WE FIND THAT IN ASSESSEES OWN CASE THE ITAT VIDE ITS ORDER DATED 28.5.2019 IN QUANTUM APPEAL NO. 4017/DEL/2016 (AY 2 007-08) HAS DELETED THE ENTIRE ADDITIONS ON WHICH THE PENALTY IN DISPUTE H AS BEEN IMPOSED, HENCE, THE PENALTY IN DISPUTE WILL NOT SURVIVE. ACCOR DINGLY, WE DELETE THE PENALTY IN DISPUTE IN THIS APPEAL. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STAND S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/08/2019. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 13/08/2019 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 4