Smt. Riddhi Kiranbhai Gandhi, Ahmedabad V. The Income Tax Officer, Ward-9(4), Ahmedabad

ITA 3159/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9946 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER ./ ITA NO. 3159/AHD/2015 / ASSESSMENT YEAR: 2008-09 SMT. RIDDHI KIRANBHAI GANDHI, 18, AABODANA, NR. CHITVAN CLUB, BIG DADDY ROAD, BOPAL, AHMEDABAD .. APPELLANT PAN : AELPG 1252 M VS INCOME TAX OFFICER, WARD-9(4), AHMEDABAD .. RESPONDENT ASSESSEE(S) BY : SHRI PARIN S. SHAH , AR REVENUE BY : SHRI DILEEP KUMAR , SR - DR / DATE OF HEARING 14/12/2015 /DATE OF PRONOUNCEMENT 01/01/2016 / O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -3, AHMEDABAD, DATED 04.09.2015 FOR ASSESSMENT YEAS 200 8-09, CONFIRMING PENALTY OF RS.5,46,622/- U/S 271(1)(C). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 12.11.2010, DETERMINING THE TOTAL INCOME AT RS.2,68 ,830/-. (SMC) ITA NO. 3159/AHD/2015 SMT. RIDDHI KIRANBHAI GANDHI VS. ITO AYS : 2008-09 2 THEREAFTER, THE ASSESSING OFFICER FRAMED ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT VIDE ORDER DATED 28.10.2013, THEREBY THE AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.19,10,270/-. SUBSEQUENTLY, THE ASSESSING OFFICE R IMPOSED PENALTY U/S 271(1)(C) VIDE ORDER DATED 28.04.2014 O F RS.5,46,622/-, ON THE GROUND THAT THE ASSESSEE HAS FURNISHED THE INACCURATE PARTICULARS OF HER INCOME. BEING AGG RIEVED BY THE PENALTY ORDER, THE ASSESSEE CARRIED THE MATTER BEFO RE THE CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESS EE, HAS CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFIC ER. AGGRIEVED BY THE ORDER OF THE CIT(A), NOW THE ASSES SEE IS FURTHER IN APPEAL BEFORE US. 2. THE AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE H AS SUBMITTED THAT THE ORDER OF THE LD. CIT(A) WAS NOT JUSTIFIED AND HE ALSO PLACED RELIANCE ON THE DECISION OF CO-ORDIN ATE BENCH IN THE CASE OF SMT. SUDHABEN T. PARIKH VS. ITO, VIDE I TA NO.831/AHD/2011. ON THE CONTRARY, LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF THE CIT(A). 3. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE MATERIAL ON RECORD. I FIND THAT, UNDER THE SIMILA R SET OF FACTS (SMC) ITA NO. 3159/AHD/2015 SMT. RIDDHI KIRANBHAI GANDHI VS. ITO AYS : 2008-09 3 AND CIRCUMSTANCES, THE CO-ORDINATE BENCH OF TRIBUNA L (AHMEDABAD A BENCH) IN THE CASE OF SMT. SUDHABEN T. PARIKH VS. ITO (SUPRA) HAS CANCELLED THE PENALTY LEVIED BY THE ASSESSING OFFICER, BY OBSERVING AS UNDER:- 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT D URING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE HAD REVISED THE CALCULATION OF CAPITAL GAINS ON ACCOUNT OF WRONG CONSIDERATION OF THE DATE OF PURCHASE. IT IS ALSO A FACT THAT THE CORRECTION POSITION ABOUT THE CAPITAL GAIN WAS BROUGHT TO THE NOTICE OF THE A.O BY THE ASSESSEE. T HERE IS NOTHING ON RECORD TO DEMONSTRATE THAT THE REVENUE H AD DETECTED CONCEALMENT ON ACCOUNT OF WRONG MENTIONING OF THE DATE. 7. THE PENALTY UNDER SECTION. 271(L)(C) OF THE ACT IS LEVIABLE IF THE AO IS SATISFIED IN THE COURSE OF ANY PROCEED INGS UNDER THE ACT THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 8. THE NECESSARY INGREDIENTS FOR ATTRACTING EXPLN. 1 TO SECTION. 271(L)(C) ARE THAT (I) THE PERSON FAILS TO OFFER THE EXPLANATION, OR (II) HE OFFERS THE EXPLANATION WHIC H IS FOUND BY THE AO OR THE CIT(A) OR THE CIT TO BE FALSE, OR (III) THE PERSON OFFERS EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATI ON IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SA ME HAVE BEEN DISCLOSED BY HIM. IF THE CASE OF ANY ASSESSEE FALLS IN ANY OF THESE THREE CATEGORIES, THEN ACCORDING TO TH E DEEMING PROVISION PROVIDED IN EXPLN. 1 TO SECTION. 271(L)(C) THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOT AL INCOME SHALL BE CONSIDERED AS THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED, FOR THE PURP OSES OF (SMC) ITA NO. 3159/AHD/2015 SMT. RIDDHI KIRANBHAI GANDHI VS. ITO AYS : 2008-09 4 CLAUSE. (C) OF S. 271(1), AND THE PENALTY FOLLOWS. ON THE OTHER HAND, IF THE ASSESSEE IS ABLE TO OFFER AN EXP LANATION, WHICH IS NOT FOUND BY THE AUTHORITIES TO BE FALSE, AND ASSESSEE HAS BEEN ABLE TO PROVE THAT SUCH EXPLANATI ON IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SA ME HAVE BEEN DISCLOSED BY HIM, THEN IN THAT CASE PENALTY SH ALL NOT BE IMPOSED. 9. IN THE PRESENT CASE THE ASSESSEE HAD DURING THE COURSE OF ASSESSMENT PROCEEDINGS REVISED THE RETURN OF INC OME AND THE SAME WAS ACCEPTED BY THE A.O. BEFORE US, NO MATERIAL HAS BEEN BROUGHT ON RECORD TO DEMONSTRATE THAT THE SUBMISSIONS OF THE ASSESSEE WERE FALSE. WHEN TH E ASSESSEE HAS FURNISHED ALL THE MATERIAL FACTS RELEV ANT THERETO, THE DISALLOWANCE OF SUCH CLAIM CANNOT AUTOMATICALLY LEAD TO THE CONCLUSION THAT THERE WAS CONCEALMENT OF PARTICULARS OF HIS INCOME BY THE ASS ESSEE OR FURNISHING INACCURATE PARTICULARS THEREOF. WHAT IS TO BE SEEN IS WHETHER THE SAID CLAIM MADE BY THE ASSESSEE WAS BONA FIDE AND WHETHER ALL THE MATERIAL FACTS RELEVA NT THERETO HAVE BEEN FURNISHED AND ONCE IT IS SO ESTAB LISHED, THE ASSESSEE CANNOT BE HELD LIABLE FOR CONCEALMENT PENALTY UNDER S. 271(1) (C) OF THE ACT. IN THE PRESENT CASE SINCE ALL THE NECESSARY FACTS WERE FURNISHED, WE ARE OF THE V IEW THAT SIMPLY BECAUSE THE ADDITION HAS BEEN MADE IT DOES N OT CALL FOR LEVY OF PENALTY UNDER S. 271(L)(C). WE THU S CANCEL THE PENALTY LEVIED BY THE AO. THEREFORE, THIS GROUN D OF ASSESSEE IS ALLOWED. 4. NOTHING CONTRARY WAS BROUGHT ON RECORD ON BEHALF OF THE REVENUE. FACTS BEING SIMILAR, SO FOLLOWING THE SAM E REASONING I AM NOT INCLINED TO CONCUR WITH THE FINDINGS OF THE LD. CIT(A); THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF CO -ORDINATE BENCH IN THE CASE OF SMT. SUDHABEN T. PARIKH (SUPRA ), I ALLOW (SMC) ITA NO. 3159/AHD/2015 SMT. RIDDHI KIRANBHAI GANDHI VS. ITO AYS : 2008-09 5 THIS APPEAL FILED BY THE ASSESSEE AND DELETE THE PE NALTY OF RS.5,46,622/- LEVIED BY THE ASSESSING OFFICER U/S 2 71(1)(C) OF THE ACT. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE COURT ON 1ST JANUARY, 2016 AT AHMEDABAD. SD/- ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 01/01/2016 BIJU T., PS / 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