A.J.Hameed Sulaiman, CHENNAI V. ITO Non Corporate Ward 1(3), CHENNAI

ITA 2719/CHNY/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0145 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 13-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S NATARAJA
• Section: 54F

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2719/CHNY/2017 ( )( / ASSESSMENT YEAR : 2013-14 SHRI A.J. HAMEED SULAIMAN, NO.69, NEW NO.6, THIRUMALAI PILLAI ROAD, T. NAGAR, CHENNAI - 600 017. PAN : AAUPH 5954 N V. THE INCOME TAX OFFICER, NON CORPORATE WARD 1(3), CHENNAI - 600 034. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SH. SAROJ KUMAR PARIDA, ADVOCATE -.+, / 0 / RESPONDENT BY : SHRI S. NATARAJA, JCIT 1 / 2% / DATE OF HEARING : 11.09.2018 3') / 2% / DATE OF PRONOUNCEMENT : 19.09.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -2, CHENNA I, DATED 28.09.2017, CONFIRMING THE PENALTY LEVIED BY THE AS SESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') FOR THE ASSESSMENT YEAR 2013-14. 2 I.T.A. NO.2719/CHNY/17 2. SH. SAROJ KUMAR PARIDA, THE LD.COUNSEL FOR THE A SSESSEE, SUBMITTED THAT DURING THE COURSE OF ASSESSMENT, THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 54F OF THE ACT IN R ESPECT OF THE INVESTMENT IN PURCHASE OF PROPERTY AT NERKUNDRAM RO AD, VADAPALANI, CHENNAI. ACCORDING TO THE LD. COUNSEL, THE ASSESSEE HAD SOLD A PROPERTY AT LATHAMS BUNGALOW ROAD, RAMAN ATHAPURAM AND THE CAPITAL GAIN WAS INVESTED IN THE NEW PROPER TY AT VADAPALANI. ACCORDING TO THE LD. COUNSEL, THE ASSESSEE CLAIMED EXEMPTION UNDER SECTION 54F OF THE ACT TO THE EXTENT OF 50,55,152/-. THE ASSESSING OFFICER, HOWEVER, DISALLOWED THE CLAIM OF THE ASSESSEE. ACCORDING TO THE LD. COUNSEL, A MERE CLAIM IN THE R ETURN OF INCOME UNDER SECTION 54F OF THE ACT CANNOT BE A GROUND FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE LD.COUNSEL PLACED HIS RELIANCE ON THE JUDGMENT OF APEX COURT IN CIT V. RE LIANCE PETROPRODUCTS PVT. LTD. (322 ITR 158). 3. ON THE CONTRARY, SHRI S. NATARAJA, THE LD. DEPAR TMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE ORIGINA LLY CLAIMED DEDUCTION UNDER SECTION 54F OF THE ACT IN RESPECT O F CAPITAL GAIN ON SALE OF PROPERTY AT LATHAMS BUNGALOW ROAD, RAMANATH APURAM. DURING THE COURSE OF ASSESSMENT PROCEEDING, ACCORDI NG TO THE LD. 3 I.T.A. NO.2719/CHNY/17 D.R., THE ASSESSING OFFICER FOUND THAT THE NEW PROP ERTY PURCHASED BY THE ASSESSEE AT NERKUNDRAM ROAD, VADAPALANI, IS A COMMERCIAL ONE. THEREFORE, THE ASSESSEE BY A LETTER DATED 10. 02.2016, OFFERED TO WITHDRAW THE CLAIM MADE UNDER SECTION 54F OF THE ACT. SINCE THE ASSESSEE WITHDREW THE CLAIM OF DEDUCTION UNDER SECT ION 54F OF THE ACT AFTER THE ASSESSING OFFICER POINTED OUT THAT TH E PROPERTY PURCHASED BY THE ASSESSEE BY INVESTING THE CAPITAL GAIN IS A COMMERCIAL ONE, ACCORDING TO THE LD. D.R., THE ASSE SSEE HAS FURNISHED INACCURATE PARTICULARS IN RESPECT OF CAPI TAL GAIN. HENCE, THE CIT(APPEALS) HAS RIGHTLY CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE LONG TERM CAPITAL GAIN ACCRUED TO THE ASSESSEE ON SALE OF PROPERTY AT RAMANATHAPURAM. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE INVESTED THE CAPITAL GAIN IN A PROPERT Y AT NERKUNDRAM ROAD, VADAPALANI, CHENNAI. THE ASSESSEE CLAIMED DE DUCTION UNDER SECTION 54F OF THE ACT. THE ASSESSING OFFICE R FOUND THAT THE INVESTMENT MADE BY THE ASSESSEE IN THE PROPERTY AT NERKUNDRAM, VADAPALANI IS A COMMERCIAL ONE, THEREFORE, THE ASSE SSEE IS NOT 4 I.T.A. NO.2719/CHNY/17 ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 54F OF TH E ACT. IN VIEW OF THE ABOVE, THE ASSESSEE WITHDREW HIS CLAIM. THE QU ESTION ARISES FOR CONSIDERATION IS WHETHER A MERE CLAIM UNDER SEC TION 54F OF THE ACT FOR DEDUCTION IN RESPECT OF LONG TERM CAPITAL G AIN AND SUBSEQUENT WITHDRAWAL OF THE SAME BY A LETTER AMOUN TS TO FURNISHING OF INACCURATE PARTICULARS OF INCOME OR NOT? IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS FURNISHED ENTIRE CAPITAL GAIN AROS E OUT OF THE SALE OF PROPERTY. THE ASSESSEE ALSO CLAIMED DEDUCTION U NDER SECTION 54F OF THE ACT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS NOT CONCEALED ANY PARTICULARS OF HIS I NCOME OR FURNISHED ANY INACCURATE PARTICULARS OF HIS INCOME. AS FOUND BY THE APEX COURT IN RELIANCE PETROPRODUCTS PVT. LTD. (SUP RA), A MERE STATUTORY CLAIM IN THE RETURN OF INCOME DOES NOT AM OUNT TO CONCEALING ANY PART OF INCOME OR FURNISHING ANY INA CCURATE PARTICULARS. IN VIEW OF THE ABOVE, WE ARE UNABLE T O UPHOLD THE ORDER OF THE CIT(APPEALS). ACCORDINGLY, ORDERS OF BOTH T HE AUTHORITIES BELOW ARE SET ASIDE AND THE PENALTY LEVIED BY THE A SSESSING OFFICER UNDER SECTION 271(1)(C) OF THE ACT IS DELETED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 5 I.T.A. NO.2719/CHNY/17 ORDER PRONOUNCED IN THE COURT ON 19 TH SEPTEMBER, 2018 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 19 TH SEPTEMBER, 2018. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-2, CHENNAI-34 4. PRINCIPAL CIT-1, CHENNAI 5. 7: -2 /DR 6. ;( < /GF.