Arun Kumar Gupta (HUF), Delhi V. ACIT, New Delhi

ITA 2990/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0878 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 14-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S P A GARWAL
• Keywords: Revised return
• Section: 142(1); 27

Judgement Text

1 ITA NO. 2990/DEL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 2990/DEL/2015 ( A.Y 2010-11) ARUN KUMAR GUPTA (HUF) 2122, BAHADURGARH ROAD, SADAR BAZAR DELHI AAFHA4556G (APPELLANT) VS ACIT CIRCLE-39(1) NEW DELHI (RESPONDENT) APPELLANT BY SH. S. P. AGARWAL, CA RESPONDENT BY SH. ANOOP SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 16/3/2015 PASSED BY CIT(A)-XX, NEW DELHI FOR ASSESSMENT YEAR 2010-11. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. ON THE FACTS AND IN LAW LD COMMISSIONER OF INCO ME TAX (APPEALS)- XX, WAS NOT JUSTIFIED IN DISMISSING APPEAL OF THE A SSESSEE. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIF IED IN CONFIRMING PENALTY U/S 271(1)(C) OF I.T. ACT, AMOUN TING TO RS.4,37,379/-, BEING 100% OF THE TAX SOUGHT TO BE E VADED. 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, LD. COMMISSIONER OF DATE OF HEARING 10.09.2018 DATE OF PRONOUNCEMENT 11.09.2018 2 ITA NO. 2990/DEL/2015 INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN NOT ACCEP TING THE BONA-FIDE EXPLANATIONS FURNISHED BY THE ASSESSEE DURING ASSES SMENT AND PENALTY PROCEEDINGS, REGARDING OMISSION IN THE COMP UTATION OF INCOME LEADING TO INADVERTENT FURNISHING OF 'INACCU RATE PARTICULARS' OF INCOME. 3. THE ASSESSEE FILED ONLINE RETURN DECLARING INCOM E OF RS.25,46,504/-. THE RETURN WAS SELECTED FOR SCRUTINY WITH NOTICE U/S 14 3(2) DATED 28.09.2011. IN RESPONSE TO THE NOTICE THE ASSESSEE INITIALLY FILED REPLY SUBMITTING COMPUTATION OF INCOME, AUDITED BALANCE SHEETS AND TAX AUDIT REP ORT, ETC. IN PAPER FORM. OTHER NOTICES U/S 142(1) DT.10.01.2012 AND DT.31.12 .2012, WERE ISSUED. IN RESPONSE TO THESE NOTICES ASSESSEE FILED A RECTIFIC ATION APPLICATION TO RECTIFY THE INTIMATION OF ASSESSED INCOME U/S 143(1) BY WAY OF INCLUDING LONG TERM CAPITAL GAIN OF RS. 19,45,055/- WHICH WAS LEFT OUT FROM INC LUSION IN THE ORIGINAL COMPUTATION AND RETURN OF INCOME. THE RECTIFICATION LETTER WAS FILED SINCE, THE TIME LIMIT FOR FILING REVISED RETURN UNDER THE PROV ISIONS OF SECTION 139(5), HAD EXPIRED. THE AMOUNT OF CAPITAL GAIN WAS ALREADY INC LUDED IN THE BALANCE SHEET SUBMITTED EARLIER, BUT WAS LEFT OUT FROM COMPUTATIO N OF CAPITAL GAIN WHILE PREPARING RETURN OF INCOME. DURING ASSESSMENT PROCE EDINGS ANOTHER ERROR IN CAPITAL GAIN TO THE TUNE OF RS 1,78,144/- WAS DISCO VERED WHICH WAS ALSO OFFERED FOR TAXATION. THE ASSESSEE PAID CAPITAL GAIN TAX WI TH INTEREST SUO MOTO AND SUBMITTED THE RECEIPTED CHALLANS BEFORE COMMENCEMEN T OF SCRUTINY ASSESSMENT. THE CAPITAL GAIN AS COMPUTED BY THE ASS ESSEE AND OFFERED FOR TAXATION WERE ACCEPTED BY THE ASSESSING OFFICER WIT HOUT POINTING OUT ANY DISCREPANCY. THE ASSESSING OFFICER INITIATED PENALT Y PROCEEDINGS U/S 271(1)(C) OF INCOME TAX ACT AND IMPOSED PENALTY OF RS.4,37,379/-. 4. BEING AGGRIEVED BY THE ASSESSEE, THE ASSESSEE FI LED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASS ESSEE. 5. THE LD. AR SUBMITTED THAT IT IS A GENUINE CASE O F OMISSION AND BONA FIDE MISTAKE OF NOT INCLUDING THE CAPITAL GAINS AT THE T IME OF PREPARING COMPUTATION AND RETURN OF INCOME, ALTHOUGH THE AMOUNTS WERE DIS CLOSED IN THE BALANCE 3 ITA NO. 2990/DEL/2015 SHEET, PREPARED IN SUPPORT OF RETURN. THE ASSESSEE RECTIFIED THE MISTAKE OF NON INCLUSION OF CAPITAL GAIN IN COMPUTATION BY SURREND ERING THE CAPITAL GAIN AND DEPOSITED THE TAX WITH INTEREST BEFORE THE COMMENCE MENT OF SCRUTINY ASSESSMENT. THE LD. AR RELIED UPON THE FOLLOWING CA SE LAWS: I. THE ASSISTANT COMMISSIONER OF INCOME TAX V. ASH OK RAJ NATH [2012] 19 ITR (TRIB) (ITAT [DEL] II. THE COMMISSIONER OF INCOME TAX V. BHAVINKUMAR M. DAGLI [2015] 377 ITR 389 (GUJ) . 6. THE LD. DR SUBMITTED THAT THE ASSESSING OFFICER RIGHTLY LEVIED THE PENALTY AND THE CIT(A) RIGHTLY SUSTAINED THE PENALTY U/S 27 1(1) (C) OF THE ACT, 1961. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL R ELEVANT MATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT T HE ASSESSEE AFTER RECEIVING THE NOTICE U/S 143(2) FILED REVISED COMPUTATION AFTER C OMING TO THE KNOWLEDGE THAT THE ASSESSEE HAS NOT INCLUDED THE CAPITAL GAINS AT THE TIME OF CALCULATING COMPUTATION AND FILING RETURN OF INCOME, ALTHOUGH T HE AMOUNTS WERE DISCLOSED IN THE BALANCE SHEET PREPARED IN SUPPORT OF RETURN. THUS, THE ASSESSEE HAS ADMITTED THE MISTAKE BEFORE THE ASSESSING OFFICER C OULD DETECT SUCH OMISSION. THUS, IT IS NOT A CASE OF FURNISHING OF INACCURATE PARTICULARS OR CONCEALMENT OF INCOME BEFORE THE ASSESSING OFFICER. SECTION 271 O F THE ACT COMES INTO PICTURE WHEN THERE IS A FAILURE TO FURNISH RETURNS OR THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS BEFORE THE ASS ESSING OFFICER. BUT IN THE PRESENT CASE BEFORE THE ASSESSING OFFICER, ALL THE RELEVANT FACTS WERE ALREADY AVAILABLE AND THE MISTAKE HAS BEEN RECTIFIED BY THE ASSESSEE PRIOR TO THE MISTAKE POINTED OUT BY THE ASSESSING OFFICER TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, THE ORDER OF TH E CIT(A) IS NOT CORRECT, AS THERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS. THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT IS THEREFO RE QUASHED. THE APPEAL OF THE ASSESSEE IS ALLOWED. 4 ITA NO. 2990/DEL/2015 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 11TH SEPTEMBE R, 2018. SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 11/09/2018 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 2990/DEL/2015 DATE OF DICTATION 10.09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10.09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 11 .09.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 11 .09.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11 .09.2018 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER