Shri Shaileshkumar P.Lukhi, Surat V. The Income tax Officer,Ward-9(4), Surat

ITA 2807/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0622 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-08-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 02-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Assessee Lawyers: RUSI PARIKH
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ ITA NO. 2807/AHD/2013 / ASSESSMENT YEAR : 2006-07 SHRI SHAILESHKUMAR P. LUKHI, 206, LALBHAI CONTRACTOR COMPLEX, NR. POST OFFICER, NANPURA, SURAT-395001 PAN : AAKPL 0597 R VS ITO, WARD 9 (4), SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI RUSI PARIKH, AR REVENUE BY : SHRI RAJESH MEENA, SR DR / DATE OF HEARING : 23/08/2016 / DATE OF PRONOUNCEMENT: 15/09/2016 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER:- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE LEVY AND CONFIRMATION OF PENALTY U/S 271(1)(C) OF THE ACT AN D THE APPELLANT HAS TAKEN FOLLOWING GROUNDS:- 1. THAT THE CIT(A) ERRED IN OBSERVING THAT THE ASSESSEE FAILED TO DISCLOSE FULLY & TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSME NT. 2. THAT THE CIT(A) HAS NOT DEALT WITH OR DISCUSSED HOW THE EXPLANAITON-1 TO SECTION 271(1)(C) IS ATTRACTED IN CASE OF ASSESSEE. 3. THAT THE CIT(A) HAS NOT DEALT WITH HOW THE PENALTY I S EXIGIBLE ON DEEMED CAPITAL GAIN U/S 50C IN VIEW OF THE JUDGMENT OF HON BLE ITAT, AHMEDABAD BENCH IN CASE OF CHIMANLAL MANILAL PATEL ITA NO.508 /AHD/2010. 4. THAT THE PENALTY LEVIED & CONFIRMED U/S 271(1)(C) OF RS.3,46,000/- MAY KINDLY BE CANCELLED. ITA NO. 2807/AHD/2013 SHRI SHAILESHKUMAR P. LUKHI VS. ITO AY : 2006-07 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER HAD ADOPTED THE SALE CONSIDERATION U/S 50C OF RS.43,79,760/- AS AGAINST THE SALE DEED VALUE OF RS.28,78,000/- AND ASSESSED DEEMED CAPITAL GAIN OF RS.15,63,675/-. THE VALUE ASSESSED BY THE STAMP DUTY AUTHORITY WAS TAKEN AS MARKET VALUE OF THE PROPERTY IN THE CASE OF ASSESSEE WHICH IS RS .43,79,760/- INSTEAD OF TOTAL SALE CONSIDERATION OF RS.28,78,000/- SHOWN BY THE ASSESSEE. THEREFORE, THE DIFFERENCE OF VALUE, WHICH COMES TO RS.15,01,76 0/-, WAS TREATED AS UNDISCLOSED RECEIPT OF THE ASSESSEE AND ACCORDINGLY THE SAME WAS TAKEN FOR WORKING OUT OF CHARGEABLE CAPITAL GAIN ON SALE OF S AID PROPERTY. CONSEQUENTLY, THE ADDITIONAL STAMP DUTY PAID AMOUNT ING TO RS.1,72,750/-, I.E. PAYABLE AS PER JUNTRY VALUE OF RS.2,02,750 R S.30,000 PAID AS PER ORIGINAL VALUE WAS ALSO ADDED TO THE TOTAL INCOME AS PAID FR OM UNACCOUNTED SOURCE. SINCE THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME, PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED AGAINST THE APPELLANT. 3. AGAINST THE AFORESAID IMPUGNED PENALTY ORDER, TH E ASSESSEE/APPELLANT PREFERRED FIRST STATUTORY APPEAL , BUT THE CIT(A) REJECTED THE CONTENTIONS OF THE APPELLANT/ASSESSEE AND CONFI RMED THE ORDER OF THE ASSESSING OFFICER. 4. WE HAVE HEARD BOTH THE PARTIES, GONE THROUGH THE RELEVANT RECORD & IMPUGNED ORDER AND THE JUDGMENTS CITED BY THE ASSES SEE/APPELLANT. THE ASSESSING OFFICER HAD NOT QUESTIONED THE ACTUAL SAL E CONSIDERATION RECEIVED BY THE ASSESSEE BUT THE ADDITION WAS PURELY MADE ON DEEMING FICTION AND HE HAS ALSO NOT GIVEN THE FINDING THAT ACTUAL SALE CON SIDERATION IS MORE THAN THE SALE CONSIDERATION ADMITTED AND MENTIONED IN SALE D EED. APPLICATION OF SECTION 50C IS NOT A CONCLUSIVE PROOF THAT SALE DEE D IS INCORRECT OR WRONG AND ADDITION BECAUSE OF DEEMING FICTION WOULD NOT IPSO FACTO ATTRACT PENALTY US/ 271(1)(C). IT HAS BEEN HELD BY THE HONBLE SUP REME COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P) LTD, (2010) 322 ITR 0158 (SC), THAT MERELY ITA NO. 2807/AHD/2013 SHRI SHAILESHKUMAR P. LUKHI VS. ITO AY : 2006-07 3 BY MAKING A CLAIM WHICH IS NOT ACCEPTED BY THE AO, PENALTY U/S 271(1)(C) CANNOT BE LEVIED. EVEN OTHERWISE ALSO THE ASSESSEE S CASE IS NOT COVERED WITHIN THE MEANING OF EXPLANAION-1 TO SECTION 271(1 )(C), BECAUSE THE ASSESSEE HAS FURNISHED THE EXPLANATION WHICH IS NOT FOUND TO BE FALSE. THERE IS NO ALLEGATION THAT THE ASSESSEE HAS NOT DISCLOSE D ANY MATERIAL FACT FOR THE PURPOSES OF ASSESSMENT OR FOR THE PURPOSES OF LEVY OF PENALTY AND THERE IS ALSO NO ALLEGATION THAT THE EXPLANATION FURNISHED B Y THE ASSESSEE IS NOT BONA FIDE . THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE C ASE OF STAR INTERNATIONAL (P) LTD VS. ACIT, REPORTED IN (2008) 23 SOT 88 (LUC KNOW) HAS ALSO HELD THAT FOR INVOKING EXPLANATION-1 TO SECTION 271(1)(C), TH REE INGREDIENTS ARE TO BE CUMULATIVELY AND SIMULTANEOUSLY SATISFIED, WHICH AR E. 1. THE ASSESSEE OFFERS AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE; AND 2. HE FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FID E; AND 3. ALL THE FACTS RELATING TO THE SAME AND MATERIAL FAC TS TO THE COMPUTATION OF TOTAL INCOME THEN DISCLOSED BY HIM. IN THE PRESENT CASE, NONE OF THE INGREDIENTS IS SAT ISFIED. THEREFORE, IN VIEW OF THE ABOVE CITATIONS RELIED BY THE ASSESSEE AND F ACTS OF THE CASE, WE DELETE THE PENALTY OF RS.3,46,000/- LEVIED BY THE ASSESSIN G OFFICER U/S 271(1)(C) OF THE ACT AND ACCORDINGLY THE APPEAL IS DECIDED IN FA VOUR OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 15 TH SEPTEMBER, 2016 AT AHMEDABAD. SD/- SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) MAHAVIR PRASAD (JUDICIAL MEMBER) AHMEDABAD; DATED 15/09/2016 *BIJU T. ITA NO. 2807/AHD/2013 SHRI SHAILESHKUMAR P. LUKHI VS. ITO AY : 2006-07 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD