Shri Prakash Ramsingh Nagdev, Ahmedabad V. The Income Tax Officer, Ward-10(4), Ahmedabad

ITA 2699/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0776 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 19-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH SOLANKI HEARING CONCLUD
• Keywords: Revised return

Judgement Text

I.T.A. NO.: 2699/AHD/2013 ASSESSMENT YEARS: 2009 - 10 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM ] I.T.A. NO. : 2699 /AHD/201 3 ASSESSMENT YEAR S: 2009 - 10 PRAKASH RAMSINGH NAGDEV ............APPELLANT [AAOPN1169M ] VS INCOME TAX OFFICER WARD 10(4), AHMEDABAD ...........RESPONDENT APPEARANCES BY SUNIL TALATI FOR THE APPELLANT SATISH SOLANKI FOR THE RESPONDENT HEARING CONCLUDED ON: 01/08 /16 ORDER PRONOUNCED ON : 16 /08/16 O R D E R 1. THE SHORT ISSUE THAT I AM REQUIRED TO ADJUDICATE IN TH IS APPEAL IS WHETHER OR NOT THE LEARNED CIT(A) WAS JUSTIFIED IN UPHOLDING THE PENALTY OF 1,22,834 IMPOSED ON THE ASSESSEE UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2009 - 10 . THE CIT(A) S ORDER, IMPUGNED IN THIS APPEAL, IS DATED 20 TH AUGUST 2013 . 2. THE RETURN FILED BY THE ASSESSEE WAS A BELATED RETURN , IN RESPECT OF THE ASSESSMENT YEAR 2009 - 10, ON 31 ST MARCH 2010. SUBSEQUENTLY, HOWEVER, THE ASSESSEE REVISED THIS RETURN TO DISCLOSE THE LONG TERM CAPITAL GAIN OF RS 5,96,280 WHICH WAS LEFT OUT IN THE ORIGINAL RETURN. THE REVISED RETURN WAS, SEEKING TO REVISE A BELATED RETURN - WHICH IS NOT PERMISSIBLE UNDER SECTION 139(5), WAS IGNORED. AN ADDITION OF THIS LONG TERM CAPITAL GAIN WAS MADE IN THE SCRUTINY ASSESSMENT OF THE ORIGINA L RETURN. THE ASSESSEE S CLAIM THAT THE OMISSION, OF LTCG WAS INADVERTENT WHICH WAS ANYWAY DISCLOSED IN THE SUBSEQUENT REVISED RETURN, WAS REJECTED, AND PENALTY UNDER SECTION 271(1)(C), AMOUNTING TO RS 1,22,834, WAS ALSO IMPOSED. I.T.A. NO.: 2699/AHD/2013 ASSESSMENT YEARS: 2009 - 10 PAGE 2 OF 2 IN APPEAL, LEARNED CIT(A) CONFIRMED THIS PENALTY. THE ASSESSEE IS AGGRIEVED AND IS IN FURTHER APPEAL BEFORE ME. 3. I HAVE HEARD THE PARTIES, PERUSED THE RECORDS AND CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 4. I FIND THAT THERE IS NO GOOD REASON TO REJECT ASSESSEE S SUBMISSION THAT OMISSION OF LTCG IN THE ORIGINAL RETURN WAS AN INADVERTENT MISTAKE, WHICH THE ASSESSEE DID TRY TO MAKE GOOD IN THE REVISED RETURN. THE MERE FACT THAT THE REVISED RETURN WAS REJECTED ON TECHNICAL GROUNDS DOES NOT ALTER T HE SITUATION. AS LEARNED COUNSEL FOR THE ASSESSEE RIGHTLY POINTS OUT, IN THE LIGHT OF HON BLE JURISDICTIONAL HIGH COURT S DECISION IN THE CASE OF CIT VS SOMANY EVERGREEN KNITS LTD [ITA NO. 14332 OF 2011; JUDGMENT DATED 21 ST MARCH 2013), EVEN WHEN THE CLAIM COULD NOT BE MADE IN THE REVISED RETURN, DUE TO BONAFIDE REASONS, SUCH A FACT PER SE CANNOT JUSTIFY THE PENALTY UNDER SECTION 271(1)(C). IT IS NOT THE CASE THAT THE DISCLOSURE HAS BEEN MADE AFTER IT WAS DETECTED BY THE AO DURING THE SCRUTINY PROCEEDINGS. KEEPING IN MIND ALL THESE FACTS, AS ALSO ENTIRETY OF THE CASE, I UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DIRECT THE AO TO DELETE THE IMPUGNED PENALTY OF RS 1,22,834. 5. THE APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON 16 TH DAY OF AUGUST, 201 6. SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: 16 TH DAY OF AUGUST ,2016 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY O RDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD