Shri Badarmal Modiram Jain, Ahmedabad V. The ACIT.,Circle-11, Ahmedabad

ITA 2848/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8981 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 07-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 04-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RICHHA RASTOGI
• Keywords: Depreciation; Revised return
• Section: 143(3); 32

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER !# I.T.A. NO.2848/AHD/2013 ( / ASSESSMENT YEAR: 2008-09) SHRI BADARMAL MODIRAM JAIN 327, BHAVANPURA PITH, O/S. RAJPUR GATE, AHMEDABAD - 380001 # VS. ACIT, CIRCLE-11, AHMEDABAD. $ # % & # PAN/GIR NO. : AAZPJ 7396 K ( !$' / APPELLANT ) .. ( ($' # RESPONDENT ) !$') # APPELLANT BY : SHRI SAKAR SHARMA, AR ($'*) / RESPONDENT BY : MS. RICHHA RASTOGI, SR. DR + ,*-. / DATE OF HEARING 07/03/2017 /012*-. / DATE OF PRONOUNCEMENT 20/03/2017 3# O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE A ND IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XVI, AHMEDABAD, DATED 08/11/2013 FOR THE ASSESSMENT YEAR (AY) 2008-09. 2. ASSESSEE HAS BEEN TAKEN FOLLOWING GROUNDS OF APP EAL:- THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRM ING THE PENALTY LEVIED U/S. 271(1)(C) OF THE I.T. ACT OF RS. 3,84,0 00/- ITA NO.2848/AHD /2013 SHRI BADARMAL MODIRAM JAIN VS. ACIT ASST.YEAR 2008-09 - 2 - 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE HAS ALSO FILED A REVISED RETURN OF INCOME. ASSESSMENT U/S. 143(3) OF THE ACT WAS FINALIZED IN THIS CASE ON 15.11.2010, AFTER MAKING ADDITION U/S. 41(2) OF THE INCOME-TAX ACT OF RS.11,27,676/-. PENALTY PROCE EDINGS U/S. 271(1)(C) OF THE ACT WERE ALSO INITIATED FOR FURNISHING INACC URATE PARTICULARS OF INCOME BY ISSUING NOTICE U/S. 274 R.W.S. 271(1)(C) OF THE ACT. 4. AGGRIEVED BY THE ADDITION MADE IN THE ASSESSMENT , ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) AND THE CIT( A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. IN THIS CASE, DURING THE PREVIOUS RELEVANT TO AS SESSMENT YEAR 2008-09, THE ASSESSEE HAS SOLD PROPERTY VIZ. AN IND USTRIAL UNIT NO. 101 ON GROUND FLOOR, ADMEASURING 4646 SQ.MTR. CARPET AREA IN THE BUILDING KNOWN AS MAHAVIR INDUSTRIAL ESTATE ON LAND BEARIN G CTS NO. 238/5 OF VILLAGE GUNDAVALI, SITUATED, LYING & BEING PLOT NO. 32, MAHAL INDUSTRIAL AREA, OFF. MAHAKALI CAVES ROAD, ANDHERI (EAST), MUM BAI. THE PROPERTY WAS SOLD FOR RS. 25,00,000/-. THE ASSESSEE HAS DISC LOSED CAPITAL GAIN IN HIS RETURN OF INCOME OF RS.3,27,676/- AS PER WORKIN G AS UNDER: ITA NO.2848/AHD /2013 SHRI BADARMAL MODIRAM JAIN VS. ACIT ASST.YEAR 2008-09 - 3 - SALE PRICE.. 25,00,000/- LESS : WDV AS ON 01.04.2007 13,72,324/- NET AMOUNT 11,27,676/- 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE WAS ASKED TO FURNISH COPY OF REGISTERED SALE DEED, PROO F OF INVESTMENT OF RS.80,00,000/- IN BOND FOR WHICH EXEMPTIONS OF CAPI TAL GAIN HAS BEEN CLAIMED AND THE DETAILS OF EXPENSES SUCH AS STAMP D UTY, REGISTRATION EXPENSES ETC. IN COMPLIANCE WITH THESE, THE ASSESSE E HAS SUBMITTED LETTER DATED 22.10.2010, WHEREIN IT WAS SUBMITTED THAT THE RE WAS MISUNDERSTANDING IN DECLARING INCOME UNDER THE LONG TERM CAPITAL GAIN AND HAS ACCORDINGLY REVISED THE WORKING OF CAPITAL GAIN & OFFERED FOR TAXATION OF RS.11,27,676/- AS STCG. THE ASSESSING O FFICER HAS FURTHER OBSERVED THAT THE ASSESSEE HAS WRONGLY CLASSIFIED T HE INCOME OF RS.11,27,676/- UNDER THE HEAD 'CAPITAL GAIN'. THE A SSESSEE SOLD A BUILDING ON WHICH DEPRECIATION HAS BEEN CLAIMED AND ALLOWED U/S. 32 OF THE ACT. AS PER PROVISIONS CONTAINED IN SECTION 41( 2) OF THE ACT, THE SAID SURPLUS HAS TO BE ASSESSED AS INCOME FROM BUSINESS. THE ASSESSEE HAS REVISED HIS RETURN DURING THE COURSE OF ASSESSMENT PROCEEDINGS ONLY AFTER THIS ISSUE CAME UP FOR DETERMINATION AND REQUIRED I NFORMATION WAS CALLED FOR. HENCE, IT CANNOT BE SAID THAT THE ASSESSEE HAS REVISED HIS RETURN OF INCOME VOLUNTARILY. IT WAS REVISED ONLY AFTER THE W RONG INFORMATION FURNISHED BY THE ASSESSEE WAS DETECTED AND SINCE TH E ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME IN HIS R ETURN OF INCOME FILED ITA NO.2848/AHD /2013 SHRI BADARMAL MODIRAM JAIN VS. ACIT ASST.YEAR 2008-09 - 4 - ON 22.09.2008. HENCE, PENALTY PROCEEDINGS U/S.271(L )(C) WERE ALSO INITIATED. 7. CONSIDERING THE ABOVE DISCUSSION, LD. ACIT WAS S ATISFIED THAT IT IS A FIT CASE FOR LEVY OF PENALTY U/S. 271(L)(C) OF TH E ACT. THEREFORE, BY VIRTUE OF EXPLANATION-1 OF SECTION 271(L)(C), PENALTY OF R S.3,83,300/-, WHICH IS ALSO THE TAX SOUGHT TO BE EVADED. THE MINIMUM PENAL TY LIVABLE @100% COMES TO RS.3,83,300/- AND THE MAXIMUM PENALTY LIVA BLE @ 300% COMES TO RS.11,49,900/-. CONSIDERING THE FACTS OF THE CAS E, LD. ACIT IMPOSE A PENALTY OF RS.3,84,000/-. 8. WE HAVE GONE THROUGH THE RELEVANT RECORD AND HEA RD BOTH THE RIVAL PARTIES. IN THIS CASE, DEPARTMENT HAS ISSUED A PRIN TED NOTICE AND NO DETAIL HAVE BEEN MENTIONED, PRINTED NOTICE U/S. 271(1)(C) OF THE INCOME-TAX ACT AND NOTHING HAS BEEN MENTIONED OVER THERE AND IT AP PEARS THAT THE CONCERN OFFICER NOT APPLIED HIS MIND AS SAME NOTICE IS BLANK. AS IT HAS BEEN HELD IN SEVERAL OTHER CASES, THEN WHERE CONCER NED OFFICER HAS NOT APPLIED HIS MIND THAT SUCH NOTICE CANNOT BE SUSTAIN ED IN THE EYES OF LAW. 9. SO IN THESE CIRCUMSTANCES WE ARE OF THE OPINION THAT THIS IS A FIT CASE WHERE PENALTY SHOULD BE DELETED AND ORDER OF C IT(A) IS SET ASIDE. ITA NO.2848/AHD /2013 SHRI BADARMAL MODIRAM JAIN VS. ACIT ASST.YEAR 2008-09 - 5 - 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 20 / 0 3 /201 7 SD/- SD/- ( ) 4 5 (N.K. BILLAIYA) (MA HAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 20/03/2017 PRITI YADAV, SR. PS !'#$ %$' # COPY OF THE ORDER FORWARDED TO : 1. !$' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 67- + 8- / CONCERNED CIT 4. + 8- 4!5 / THE CIT(A)-XVI, AHMEDABAD. 5. 9:;-67 !.!672 ! / DR, ITAT, AHMEDABAD 6. ;<=, # GUARD FILE. & ' / BY ORDER, (9-- //TRUE COPY// (/' )* ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY