ITO Ward-20 (3), New Delhi V. Sudershan Kumar Gupta, New Delhi

ITA 2935/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8083 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-05-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 17-09-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S REHMAN
• Keywords: Revised return; Capital Gains
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `B : NEW DELHI) BEFORE HONBLE SR. VICE PRESIDENT SHRI R.P. GARG A ND HONBLE JUDICIAL MEMBER, SHRI A.D. JAIN ITA NO.2935/DEL./2008 (ASSESSMENT YEAR : 2005-06) ITO, WARD 20(3), VS. SHRI SUDERSHAN KUMAR GUPTA, NEW DELHI. 259, GUJRAWALA TOWN, PART-III DELHI, (NEW ADDRESS : D-2/5C, BHAMASHAH MARG, DELHI-110 009. (PAN/GIR NO.AACPG7124P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAMESH GOYAL, CA REVENUE BY : SHRI S. REHMAN, DR ORDER PER R.P. GARG, SR.VP THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) FOR THE ASSESSMENT YEAR 200 5-06 IN DELETING THE PENALTY OF RS.2,57,705 ON ACCOUNT OF TAX ON CAPITAL GAIN ON SA LE OF AGRICULTURAL LAND, IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE I.T. ACT. 2. THE ASSESSMENT PROCEEDINGS WERE COMPLETED U/S 14 3(3) ON 30.5.2007 AT A TOTAL INCOME OF RS.14,01,580 AGAINST THE RETURNED INCOME OF RS.1,75,660 BY THE ASSESSING OFFICER . THE CASE OF THE ASSESSEE WAS SELECTED UN DER SCRUTINY. THE ASSESSING OFFICER ASKED TO FURNISH DOCUMENTARY EVIDENCE IN RESPECT OF INVESTMENT MADE WITH FRANKLIN TEMPLETON MUTUAL FUND. THE ASSESSEE FILED REPLY VI DE LETTER DATED 28.2.2007. ON GOING THROUGH THE REPLY OF THE ASSESSEE AND THE EXPLANATI ON FILED REGARDING THE SOURCE OF INVESTMENT, THE ASSESSING OFFICER FOUND FROM THE PA SS BOOK OF THE ASSESSEE THAT A RECEIPT OF RS.18 LACS WAS SHOWN. ACCORDINGLY, THE ASSESSI NG OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE INCOME. THE ASSESSEE EXP LAINED THAT THE RECEIPT OF RS.18 LACS ITA NO.2935/DEL./2008 (A.Y. : 2005-06) 2 WAS OUT OF A SALE OF AGRICULTURAL LAND. THE ASSESS EE WAS THEREFORE ASKED TO FILE A REVISE RETURN AFTER DECLARING LONG TERM CAPITAL GAIN FROM THE SALE OF LAND AGAINST INCOME CLAIMED AS EXEMPT IN THE ORIGINAL RETURN. IN THE REVISED R ETURN, THE ASSESSEE SURRENDERED THE INCOME FROM LONG TERM CAPITAL GAIN AND PAID TAX THE REOF. THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION FURNISHED BY THE ASSESSEE AN D INITIATED PENALTY PROCEEDINGS SEPARATELY U/S 271(1)(C) OF THE ACT FOR CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS THEREOF. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS) DELETE D THE PENALTY IMPOSED BY THE ASSESSING OFFICER BY FOLLOWING THE JUDGMENTS OF THE HONBLE SUPREME COURT AND THE HIGH COURTS AS UNDER: 1. K.C. BUILDERS VS. ACIT (2004) 265 ITR 562 (SC) 2. CIT VS. K.D. KOHLI (2004) 138 TAXMAN 183 (DEL.) 3. CIT VS. TEXTILES AND GENERAL TRADING CO.(2000) 2 44 ITR 876 (DEL.) 4. CIT VS. INTERNATIONAL AUDIO VISUAL CO. (2007) 28 8 ITR 570 (DEL.) 5. CIT VS. SURESH CHANDER MITTAL (2000) 240 ITR 124 (M) AFTER CONSIDERING THE SUBMISSION MADE BY THE ASSESS EE AND THE FACTS AND CIRCUMSTANCES INVOLVED IN THIS APPEAL, THE COMMISSIONER OF INCOME -TAX (APPEALS) DELETED THE PENALTY IMPOSED BY THE ASSESSING OFFICER BY OBSERVING AS UN DER: ABOVE CASE LAWS AND SUBMISSION OF THE APPELLANT HA VE BEEN CONSIDERED. LOOKING INTO THE FACTS OF THE PRESENT CASE, IT IS H ELD THAT THE CLAIM OF THE ASSESSEE THAT THE CAPITAL GAINS ON SALE OF AGRICULTURAL WAS AN EXEMPTED ONE WAS A BONA FIDE BELIEF AS A NOTE TO THAT EFFECT IS APPENDED TO THE RETURN OF INCOME. THE ASSESSEE FILED A REVISED RETURN SHOWING THE CAPITAL GAINS AN D PAID THE DUE TAXES. HENCE, IT CANNOT BE SAID THAT THERE WAS DELIBERATE ATTEMPT AT CONCEALMENT ON THE PART OF THE ASSESSEE AS THE FACT OF ARISING OF CAPITAL GAINS WA S DULY MENTIONED IN THE COMPUTATION BY THE APPELLANT. ACCORDINGLY, THE PEN ALTY IMPOSED U/S 271(1)(C) IS, THEREFORE, NOT CALLED FOR AND IS HENCE DELETED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL PLACED ON RECORD. KEEPING IN VIEW THE FINDINGS MADE BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IN HIS ORDER AND ALSO THE AFORESAID JUDGM ENTS, WE ARE OF THE VIEW THAT THE PENALTY LEVIED BY THE ASSESSING OFFICER DESERVES TO BE DELETED AND DOES NOT CALL FOR ANY INTERFERENCE. WE, THEREFORE, UPHOLD THE ORDER OF T HE COMMISSIONER OF INCOME-TAX (APPEALS) AND DISMISS THE SAME. ITA NO.2935/DEL./2008 (A.Y. : 2005-06) 3 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 6. ORDER PRONOUNCED IN OPEN COURT ON 30.06.2009. (A.D. JAIN) (R.P. GARG) JUDICIAL MEMBER SR. VICE PRESIDENT DATED: JUNE 30, 2009. *SKB* COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A)-XXII, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. AR/ITAT