M/s. Amar Industries, Unjha V. The Income Tax Officer,Ward-2, Patan

ITA 2609/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8327 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 10-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Sale consideration of property below Jantri Value; Deemed to accrue or arise in india
• Section: 143(3); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER M/S. AMAR INDUSTRIES, C/O. SHRI DASHRATHBHAI M. PATEL, 59, DHANJINAGAR SOCIETY, NR. EYE HOSPITAL, UNJHA PAN:AADFA3021E (APPELLANT) VS THE ITO, WARD - 2, PATAN (RESPONDENT) REVENUE BY : S H RI PRASOON KABRA , SR. D . R. ASSESSEE BY: S H RI M.K. PATEL , A.R. DATE OF HEARING : 19 - 09 - 2 017 DATE OF PRONOUNCEMENT : 09 - 10 - 2 017 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS AS SESSEE S APPEAL FOR A.Y. 2009 - 10 , AR IS ES FROM ORDER OF THE CIT(A), GANDHINAGAR DATED 05 - 06 - 2015 , IN PROCEEDINGS UNDER SECT ION 271(1 ) (C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - I T A NO . 2609 / A HD/20 15 A SSESSMEN T YEAR 200 9 - 10 I.T.A NO. 2609 /AHD/20 15 A.Y. 2009 - 10 PAGE NO M/S. AMAR INDUSTRIES VS. ITO 2 1. THAT ON FACTS , AND IN LAW, THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN CONFIRMING PENALTY AGAINST THE FACTS AND RELEVANT CASE LAW APPLICABLE TO FACTS OF THE CASE. 2. LEARNED CIT (A) OUGHT TO CONSIDERED ALL UNDISPUTED FACTS & EXPLANATION OF THE ASSESSEE SUMMARIZED BY HIM IN PARA 5 OF HIS ORDER AND HAS ERRED IN IGNORING REPLY OF THE ASSESSEE TO AO TO KEEP THE PROCEEDINGS IN ABSENCE IN VIEW APPEAL PREFERRED TO ITAT AGAINST ADDITIONS AND CONFORMATION OF THE SAME BY CIT (A) . BOTH AUTHORITIES HAVING MISSED TO CONSIDER REPLY OF T HE ASSESSEE DATED 19.03.2014,' BOTH ORDERS UNDER APPEAL BE DECIDED NULL AND VOID. 3. IN VIEW OF PENDING APPEAL OF THE TRIBUNAL ON MERITS OF THE ADDITION, WITHOUT SEEING OR NOTICING GOOD AND VALID REPLY TO SHOW - CAUSE PENALTY ORDER OUGHT TO HAVE BEEN DELETED IN TOTO. 4. APPELLANT HAVING DISCLOSED ALL MATERIAL FACTS TRULY AND FULLY, NO PENALTY COULD BE LEVIED WITHOUT ANY LAWFUL GROUNDS. 5. BOTH AUTHORITIES BELOW HAVE ERRED IN INTERPRETING AND APPLYING PROVISION OF SEC. 271(1)(C) WITH SPECIAL REFERENCE TO ITS EXPLANATIO N - 1 ETC. 6. THAT ON FACTS AND IN LAW, ALL 3 ADDITION BEING UNWARRANTED OF FACTS PENALTY OUGHT TO HAVE DELETED. 7. ASSESSEE BEGS TO RELY ON GROUNDS OF APPEAL RAISED IN TRIBUNAL COPY OF WHICH IS AGAINST ATTACHED HEREWITH FOR READY REFERENCE. 3. IN THIS CA SE, THE ASSESSEE HAD SOLD FACTORY LAND, BUILDING ALONG WITH OTHER ASSE T S. THE STAMP DUTY WAS PAID AT THE TIME OF REGISTRATION OF DOCUMENT BEFORE THE SUB - REGISTRAR BY ADOPTING THE VALUE OF LAND AT RS. 59 , 08 , 160/ - . THE ASSESSEE HAS OBJECTED THE VALUE OF LAN D ADOPTED BY THE SUB - REGISTRAR BEFORE THE DY . COLLECTOR STAMP V ALUATION AUTHORITY. THE DY. DIRECTOR HAD REDUCED THE SALE VALUE OF LAND AND B UILDING TO RS. 46,46,115/ - AS AGAINST RS. 59 , 08160/ - . THERE AFTER , THE ASSESSING OFFICER HAS COMPUTED THE LONG TERM CAPITAL GAIN ON SALE OF LAND AT RS. 35,23,153/ - AND SHORT TERM CAPITAL GAIN ON SALE OF BUILDING AND MATERIAL AT R S. 100282/ - U/S. 143(3) OF THE ACT. THE ASSESSING OFFICER HAD ALSO MADE ADDITION OF RS . 14 , 060/ - FOR UNDISCLOSED IN TEREST INCOME FROM UGVCL. SUBSEQUENTLY, VIDE ORDER U/S. 271(1) (C) OF THE ACT DATED 31/03/2014, THE ASSESSING OFFICER HAS IMPOSED PENALTY OF RS. 9 , 73 , 550/ - FOR CONCEALMENT OF PARTICULARS OF INCOME ON THE BASIS OF AFORESAID A DDITIONS MADE IN THE CASE OF THE ASSESSEE. THE LD. CIT(A ) HAS SUSTAINED THE PENALTY ON THE BASIS OF QUANTUM ADDITION CONFIRMED BY THE LD. CIT(A) IN THE CASE OF THE ASSESSEE. I.T.A NO. 2609 /AHD/20 15 A.Y. 2009 - 10 PAGE NO M/S. AMAR INDUSTRIES VS. ITO 3 4. WE HAVE HEARD THE VIRAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE NOTICED THAT ADDITION UNDER THE HEAD CAPITAL GAIN HAS B EEN MADE ON THE BASIS OF DEEMING PROVISION OF SECTION 50C OF THE ACT. THE VALUE OF LAND WAS DETERMINED AFTER TAKING IN TO CONSIDERATION THE DETERMINATION OF STAMP DUTY RATE BY THE DY. COLLECTOR STAMP VALUATION AUTHORITY AT THE TIME OF REGISTRATION OF D OCUMENT AS ELABORATED SUPRA IN THIS ORDER. CONSEQUENTLY, HE ASSESSING OFFICER HAS WORKED OUT CAPITAL GAIN ON THE SALE OF THE PROPERTY AFTER ADOPTING THE VALUATION BASED ON THE STAMP DUTY RATE APPLIED BY THE DY. COLLECTOR . THE ABOVE FACTS DEMONSTR ATE THAT ALL MATERIAL FACTS WERE DISCLOSED AND FURTHER BECAUSE OF DEEMED INCOME THIS IS NOT A CASE OF LEVYING PENALTY AFTER TAKING INTO CONSIDERATION THE JUDICIAL PRONOUNCEMENTS OF THE CALCUTTA HIGH COURT IN THE CASE OF MADAN THEATRES LTD. 260 ITR 75 A ND THE DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF MAFATLAL NA THULAL PATEL VIDE ITA 2177/AHD/2013 DATED 17/08/2016 . IN VIEW OF THE ABOVE FACTS AND JUDICIAL PRONOUNCEMENT WE ARE OF THE CONSIDERED VIEW THAT PENALTY CANNOT BE LEVIED ON THE BASIS OF DEEM ED ADDITION IN THE CASE OF THE ASSESSEE. THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED . 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 09 - 10 - 201 7 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 09 /10 /2017 I.T.A NO. 2609 /AHD/20 15 A.Y. 2009 - 10 PAGE NO M/S. AMAR INDUSTRIES VS. ITO 4 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,