Shrenik Hiralal Shah, Vadodara V. Income Tax officer, Ward 1(1)(3), Vadodara

ITA 263/AHD/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2567 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 15-04-2024
• Assessment Year: 2010-2011
• Appeal Filed On: 13-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S SHARMA
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 147; 271(1)(c); 143(3); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA RAGHUNATH KAMBLE, JUDICAL MEMBER & SHRI NARENDRA PRASAD SINHA, ACCOUNTANT MEMBER आयकर अपील सं./I.T.A. No. 263/Ahd/2024 ( नधा रण वष / Assess ment Ye ars : 2 010-11) Sh re ni k Hi ral al S h ah 5/ A, Vr un da va n Bu ng alo w s, Ne ar M ath ur a Na gar i, T an dal ja , Va do dar a, G uj ara t 39 00 20 बनाम/ V s . Th e In co me T ax O ffi ce r W ar d – 1( 1) (3) , Va do dar a थायी लेखा सं./जीआइआर सं./P A N / G IR N o . : A P N P S 0 0 5 8 Q (Appellant) . . (Respondent) अपीलाथ ओर से /Appellant by : Ms. Amrin Pathan, A.R. यथ क ओर से/Respondent by : Shri C S Sharma, Sr. DR D a t e o f H e a r i n g 16/04/2024 D a t e o f P r o n o u n c e m e n t 03/05/2024 O R D E R PER SHRI NARENDRA PRASAD SINHA, AM: This appeal is filed by the assessee against the order of the National Faceless Appeal Centre ( NFAC), Delhi, (i n short ‘the CIT( A) ’) dated 27.09.2023 against the penalty order u/s. 271(1)(c) of the Inco me Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 30.06.2018 for the Assessment Year 2010-11. ITA No. 263/Ahd/2024 (Shrenik Hiralal. vs. ITO) A.Y.– 2010-11 - 2 – 2. The grounds of the appeal raised by the assessee are as under: “Ex-Parte Order: 1) The learned Commissioner of Income Tax (Appeals), National Faceless Appeal Center, Delhi ('NFAC') ('the CIT(A)') erred in fact and in law in passing the order ex-parte. 2) The learned CIT(A) erred in fact and in law in passing the order without granting proper opportunity of being heard. Without prejudice to the above: Penalty u/s 271(1)(c): 3) The learned CIT(A) erred in fact and in law in confirming the action of the learned Income Tax Officer, Ward 1(1)(3), Vadodara ('the Assessing Officer' or 'the AO') in levying a penalty of Rs. 8,00,000/- under section 271(1)(c) of the Act. 4) The learned CIT(A) erred in fact and in law in confirming the action of the learned AO in levying a penalty u/s 271(1)(c) of the Act on addition made on account of long-term capital gain amounting to Rs. 37,01,433/- for furnishing in accurate particulars of income. 5) The learned CIT(A) erred in fact and in law in confirming the action of the learned AO in levying a penalty u/s 271(1)(c) of the Act on addition made on account of long-term capital gain under section 50C of the Act which is nothing but a deeming provision. Limitation u/s 275: 6) The learned CIT(A) erred in fact and in law in confirming the action of the learned AO in levying a penalty of Rs. 8,00,000 under section 271(1)(c) of the Act even when the appeal against assessment order under section 147 of the Act was pending before CIT(A). 7) The learned CIT(A) erred in fact and in law in confirming the action of the learned AO of passing the order under section 271(1)(c) of the Act and not keeping the penalty proceedings under abeyance as per provision of section 275 of the Act.” 3. There is a dela y of 80 days in filing of this appeal. The assessee had filed a condonation application and it is stated that ITA No. 263/Ahd/2024 (Shrenik Hiralal. vs. ITO) A.Y.– 2010-11 - 3 – the father of th e assessee had expired on 03.04.2023 and following his death there we re legal disputes amongst the legal heirs regarding his will. As the assessee was preoccupied with the fa mil y disputes and the legal proceedings, he could not file the appeal in ti me due to oversight. It was sub mitted that the delay was not intentional but purely circu mstantial and requested for condonation thereof. Considering the reasons as explained by the assessee, t he delay is condoned. The department also didn’t have an y ob jection to the condonation of dela y. 4. The assessee is an individual and did not file his r eturn of income for A.Y. 2 010-11. The proc eeding under Section 147 of the Act was initiated and assess ment was co mpleted u/s. 143(3) / 147 of the Act on 18.12.2017 at total inco me of Rs .37,03,490/-. The AO made ad dition of Rs.37,01,433/- on account of capital gain generated on sale of i mmovable property. P enalt y proceeding u/s. 271(1)(c) of the Act was also initiated. 5. Being aggrieved with the assess ment order, the ass essee filed appeal before the C IT( A) and the CI T( A) dis missed the appeal. The AO had passed penalty order u/s. 271(1)(c) of the Act on 30.06.2018 and penalty of Rs .8 Lakhs was i mpo sed on the assessee. The assessee had challenged the penalty or der before the CIT(A) and the appeal of the assessee was dis mis sed b y the CIT( A) vide the impugned order against which the assessee is in present appeal. ITA No. 263/Ahd/2024 (Shrenik Hiralal. vs. ITO) A.Y.– 2010-11 - 4 – 6. The ld. AR sub mi tted that the assessee is a senior citizen and could not make proper co mpliance before the ld. CIT( A). It was further pointed out that an appeal against the order of the CIT( A) in quantum addition was preferred before the ITAT and that the ld. I TAT had decided the matter vide ITA No.1130/Ahd/2023, dated 14.02.2024 whereb y the mat ter was set aside to the file of ld. CI T( A) for re- adjudication. 7. The ld. AR requested that since the appeal against quantum addition was still pending with the ld. CIT( A) , the penalty matter ma y also be restored back to the file of the ld. CIT(A) . The ld. DR had no objecti on to setting aside of the penalt y ma tter to the file of the CI T(A). 8. We have carefull y considered the re quest of the assessee. It is found that the quantum appeal was restored back to the file of the ld. CI T( A) f or allowing another opportunity to th e assessee and for proper adjudication of the issues on merits. Thus, when the issue of quantu m addition is still pending before the ld. CIT( A) for re-ad judication, it will be proper that the penalty matter also be restored back to the file of the CIT( A) . Accordingly, the matter is restored to the file of the l d. CI T(A) for re-ad judication of the penalty matter after de ciding the quantum appeal. The assessee is al so directed to ma ke proper co mpliance before the ld. CIT( A) a nd file the necessar y details for proper adjudication of the issue on merits. ITA No. 263/Ahd/2024 (Shrenik Hiralal. vs. ITO) A.Y.– 2010-11 - 5 – 9. Since, the matter has been set aside to the file of the ld. CIT( A), other gr ounds taken b y t he assessee need not to be adjudicated at this stage. 10. In the result, appeal preferred b y the assessee is partly allowed for statistical purposes. This Order pronounced on 03/05/2024 Sd/- Sd/- (SUCHITRA RAGHUNATH KAMBLE) (NARENDRA PRASAD SINHA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 03/05/2024 S. K. SINHA True Copy आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. "वभागीय &त&न ध, आयकर अपील)य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड/ फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील$य अ%धकरण, अहमदाबाद / ITAT, Ahmedabad