Sh. Yashpal, New Delhi V. ITO, New Delhi

ITA 3053/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7189 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 20-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AMANDEEP SINGH SIYAR
• Keywords: Cost of acquisition
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC-II : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER ITA NO.3053/DEL/2014 ASSESSMENT YEAR : 2009-10 YASHPAL, B-224, GALI NO.2, MAJLIS PARK, NEW DELHI. PAN: ABZPY5270A VS. ITO, WARD-19(4), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMANDEEP SINGH SIYAR, ADVOCATE DEPARTMENT BY : SHRI DEEPAK GARG, SR. DR DATE OF HEARING : 20.06.2016 DATE OF PRONOUNCEMENT : 21.06.2016 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER PASSED BY THE CIT(A) ON 10.01.2014 UPHOLDING THE PE NALTY OF RS.4,30,000/- IMPOSED BY THE AO U/S 271(1)(C) OF TH E INCOME-TAX ACT, 1961 IN RELATION TO THE ASSESSMENT YEAR 2009-10. ITA NO.3053/DEL/2014 2 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE SOLD TWO HOUSE PROPERTIES FOR CONSIDERATION OF RS.17.95 LAC AND RS.8.97 LAC AND ODD DURING THE YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. IN THE CALCULATION OF CAPITAL GAINS, THE ASSESSEE D EDUCTED INDEXED COST OF ACQUISITION OF BOTH THE PROPERTIES AND DECLARED LON G-TERM CAPITAL GAIN AT RS.17,72,953/-. THIS RESULTANT AMOUNT WAS CLAIMED AS EXEMPT U/S 54 OF THE ACT. ON BEING CALLED UPON TO SUBSTANTIATE THE CLAIM U/S 54, THE ASSESSEE SUBMITTED THAT THE AMOUNT WAS DEPOSITED IN BANK ACCOUNT FOR PURCHASE OF ANOTHER RESIDENTIAL HOUSE PROPERTY. THE AO OBSERVED THAT THE AMOUNT OF LONG-TERM CAPITAL GAIN WAS DEPOSITED IN AN ORDINARY SAVING BANK ACCOUNT AND NOT THE DESIGNATED BANK ENTITLING THE ASSESSEE TO EXEMPTION AND, HENCE, THE BENEFIT U/S 54 WAS NOT AV AILABLE. HE COMPUTED LONG-TERM CAPITAL GAIN AT RS.17.72 LAC. T HEREAFTER, PENALTY WAS IMPOSED U/S 271(1)(C) OF THE ACT ON THIS COMPUT ATION OF CAPITAL GAIN, WHICH CAME TO BE CONFIRMED IN THE FIRST APPEA L. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE ON THE FACT THAT THE ITA NO.3053/DEL/2014 3 PENALTY HAS BEEN IMPOSED IN RESPECT OF COMPUTATION OF CAPITAL GAIN AMOUNTING TO RS.17,72,953/-. THIS COMPUTATION OF C APITAL GAIN RESULTED DUE TO THE DEPOSIT OF THE AMOUNT OF LONG-TERM CAPIT AL GAIN IN AN ORDINARY SAVING BANK ACCOUNT INSTEAD OF THE DESIGNATED SAVIN G BANK ACCOUNT ENTAILING EXEMPTION U/S 54 OF THE ACT. IT IS NOT D ISPUTED THAT THE ASSESSEE DID DEPOSIT THIS AMOUNT IN HIS BANK ACCOUNT. THOUGH THE SUBSTANTIAL REQUIREMENT FOR CLAIMING EXEMPTION U/S 54 IS TO DEP OSIT THE AMOUNT IN A DESIGNATED BANK ACCOUNT, BUT IN VIEW OF THE FACT TH AT THE ASSESSEE DID DEPOSIT THE AMOUNT IN AN ORDINARY SAVING BANK ACCOU NT WITHIN THE STIPULATED TIME, GOES TO SHOW THAT IT WAS A MERE BONA FIDE MISTAKE ON THE PART OF THE ASSESSEE IN NOT CORRECTLY APPRECIATING THE IMPLICATIONS OF HIS ACTION. IT MAY BE A GOOD REASON TO MAKE ADDITION, B UT NO CONCEALMENT OF INCOME OR FURNISHING OF WRONG PARTICULARS CAN BE IN FERRED FROM THIS INADVERTENT MISTAKE, WHICH, IN MY CONSIDERED OPINIO N, CANNOT LEAD TO IMPOSITION OR CONFIRMATION OF THE PENALTY. I, THERE FORE, ORDER FOR THE DELETION OF PENALTY. ITA NO.3053/DEL/2014 4 4. IN THE RESULT, THE APPEAL IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.06.201 6. SD/- [R.S. SYAL] ACCOUNTANT MEMBER DATED, 21 ST JUNE, 2016. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.