Shri Arvindbhai M. Patel, Surat V. The Dy.CIT.,Circle-6, Surat

ITA 2746/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0509 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: VARTIK R CHOKSI
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 2746/ AHD/2012 (ASSESSMENT YEAR 2009-10) SHRI ARVINDBHAI M PATEL, 5/663, DHOBI SHERI, HARIPURA, BHAVANI-WAD, SURAT VS. DCIT, CIRCLE 6, SURAT PAN/GIR NO. : ABLPP4043L (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI VARTIK R. CHOKSI, AR RESPONDENT BY: SHRI RAHUL KUMAR, SR. DR DATE OF HEARING: 29/01/2013 DATE OF PRONOUNCEMENT: 22 /02/2013 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) I, SURAT DATED 17.10.2012 FOR HE ASSESSMENT YEAR 2009- 10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE ORDER PASSED BY THE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND LIABLE TO BE QUASHED. 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE OF THE APPELLANT, THE LEARNED COMMISSIONER OF INCOME TAX ( APPEALS) HAS ERRED IN LAW IN SUSTAINING THE PENALTY UNDER SECTIO N 271(1)(C) OF THE ACT FOR RS.6,06,100/-, WHEN THE SAME IS WHOLLY UNJU STIFIED AND UNWARRANTED. THE SAME DESERVES TO BE CANCELLED. 3 WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DISREGARDING THE MATERIA L FACT THAT THE I.T.A.NO.2746 /AHD/2012 2 IMPUGNED PENALTY LEVIED BY THE ASSESSING OFFICER SO LELY BASED ON THE NOTIONAL CAPITAL GAIN ASSESSED UNDER THE DEEMIN G PROVISIONS OF SECTION 50C OF THE ACT AND THERE IS NO DIRECT EVIDE NCE FOR RECEIPT OF EXTRA MONEY, ALTHOUGH OFFERED BY THE APPELLANT THRO UGH A REVISED STATEMENT OF INCOME MUCH BEFORE THE PASSING OF THE ASSESSMENT ORDER BY THE ASSESSING OFFICER. THE IMPUGNED ORDER OF PENALTY BEING ILLEGAL AND BAD IN LAW, THE IMPUGNED ORDER PA SSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) MAY BE QUASHED. 2. IT WAS SUBMITTED BY THE LD. A.R. THAT THE SUBMIS SION MADE BY THE ASSESSEE BEFORE THE A.O. ON 06.06.2011 IS AVAILABLE ON PAGES 1 & 2 OF THE PAPER BOOK AS PER WHICH, IT WAS SUBMITTED THAT THE VALUE OF SALE SHOWN AS PER THE DOCUMENTS WAS THE REAL AND ACTUALLY RECEIVE D BY THE ASSESSEE AND, THEREFORE, THE ASSESSEE HAS FILED RETURN OF INCOME SHOWING THE SAID VALUE OF RS.12.25 LACS BUT LATER ON, WHEN THE ASSESSEE CA ME TO KNOW THAT THE PURCHASER HAS PAID THE STAMP DUTY ON JANTRI VALUE A ND, THEREFORE, THE PROVISION OF SECTION 50C ARE APPLICABLE AND HENCE, TO BUY THE PEACE OF MIND AND TO AVOID LONG DRAWN LITIGATION, THE ASSESS EE DECLARED CAPITAL GAIN ON SALE OF PROPERTY AS PER JANTRI VALUE. HE P LACED RELIANCE ON TWO TRIBUNAL DECISIONS RENDERED IN THE CASE OF RENU HIN GORANI VS ACIT IN I.T.A.NO. 2210/MUM/2010 DATED 22.12.2010 AND THE TR IBUNAL DECISION RENDERED IN THE CASE OF CHIMANLAL MANILAL PATEL VS ACIT IN I.T.A.NO. 508/AHD/2010 DATED 22.06.2012. HE SUBMITTED A COPY OF BOTH THESE TRIBUNAL DECISIONS AND HE POINTED OUT THAT UNDER SI MILAR FACTS, PENALTY WAS DELETED BY THE TRIBUNAL IN THESE TWO CASES AND, THEREFORE, IN THE PRESENT CASE ALSO, THE PENALTY SHOULD BE DELETED. 3. LD. D.R. SUPPORTED THE ORDERS OF AUTHORITIES BEL OW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND THE TRIBUNAL ORDERS CITED BY THE LD. A.R . OF THE ASSESSEE. IN THE CASE OF CHIMANLAL MANILAL PATEL (SUPRA), THE FA CTS WERE SIMILAR. IN I.T.A.NO.2746 /AHD/2012 3 THAT CASE ALSO, THE ASSESSEE DECLARED INCOME IN THE RETURN OF INCOME ON THE BASIS OF ACTUAL SALE PROCEEDS AND NOT ON THE BASIS OF THE JANTRI VALUE AS PER THE REQUIREMENT OF SECTION 50C OF THE INCOME TAX AC T, 1961 AND PENALTY WAS IMPOSED BY THE A.O. U/S 271(1)(C). IN THAT CAS E , PENALTY WAS DELETED BY THE TRIBUNAL BY MAKING FOLLOWING OBSERVATIONS AS PER PARA 5 OF THE TRIBUNAL ORDER WHICH IS REPRODUCED BELOW FOR THE SA KE OF READY REFERENCE: WE HAVE HEAD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IT IS A FACT THAT THE ADDITION HAS BEEN MA DE BY THE A.O. IN THE REVISIONARY PROCEEDINGS. THE ADDITION HAS BEEN MADE ON THE BASIS OF PROVISIONS OF SECTION 50C. IT IS NOT THE C ASE OF THE AO THAT THE ASSESSEE HAS RECEIVED CONSIDERATION OVER AND AB OVE THAN THAT DECLARED IN THE SALES DEED. THE AO HAS NOT DISPUTED THE CONSIDERATION RECEIVED BY THE ASSESSEE. THE ADDITIO N HAS BEEN MADE ON THE BASIS OF DEEMING PROVISIONS OF SECTION 50C. THE ASSESSEE HAS FURNISHED ALL THE FACTS OF SALE, DOCUM ENTS/ MATERIAL BEFORE THE AO. THE AO HAS NOT DOUBTED THE GENUINENE SS OF THE DOCUMENTS/DETAILS FURNISHED BY THE ASSESSEE. ONLY B ECAUSE THE ASSESSEE AGREED TO THE ADDITIONS BECAUSE OF THE DEE MING PROVISIONS IT CANNOT BE CONSTRUED TO BE FILING OF INACCURATE P ARTICULARS ON THE PART OF THE ASSESSEE. THE ASSESSEE AGREED TO ADDITI ON ON THE BASIS OF VALUATION MADE BY THE STAMP VALUATION AUTHORITY CAN NOT BE A CONCLUSIVE PROOF THAT THE SALE CONSIDERATION AS PER THE SALE AGREEMENT IS SEEMED TO BE INCORRECT AND WRONG. IN V IEW OF THESE FACTS WE ARE OF THE CONSIDERED VIEW THAT PENALTY CA NNOT BE LEVIED ON THE BASIS OF DEEMING PROVISION. WE ACCORDINGLY D ELETE THE SAME. 5. FROM THE ABOVE PARA OF THE TRIBUNAL ORDER, WE FI ND THAT IT WAS HELD BY HE TRIBUNAL IN THAT CASE THAT ONLY BECAUSE ASSES SEE AGREED TO THE ADDITIONS BECAUSE OF THE DEEMING PROVISIONS, IT CAN NOT BE CONSTRUED TO BE FILING OF INACCURATE PARTICULARS OF INCOME ON THE P ART OF THE ASSESSEE. SINCE IN THE PRESENT CASE, NO DIFFERENCE IN FACTS C OULD BE POINTED OUT BY THE LD. D.R., WE DO NOT FIND ANY REASON TO TAKE A C ONTRARY VIEW IN THE I.T.A.NO.2746 /AHD/2012 4 PRESENT CASE AND HENCE, RESPECTFULLY FOLLOWING THIS TRIBUNAL DECISION, WE DELETE THE PENALTY IN THE PRESENT CASE ALSO. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (D. K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 18/02/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19/02/2013.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 22/02/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.22/2 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 22/02/2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .