INCOME TAX OFFICER, JAIPUR V. SHRI SHARWAN LAL MEENA, JAIPUR

ITA 320/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3674 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 05-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANMUGA PRIYA
• Keywords: Difference of opinion; Change of opinion
• Section: 271(1)(c); 54B; 54F; 54; 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 320/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. THE INCOME TAX OFFICER, WARD 7(2), JAIPUR. CUKE VS. SHRI SHARWAN LAL MEENA L/H OF LATE SH. BHAGWANTA MEENA, MEENA KA MOHALLA, BHANKROTA, SANGANER, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ALIPM 0318 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI SHANMUGA PRIYA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04.06.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 06/06/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 14 TH DECEMBER, 2017 OF LD. CIT (A)-3, JAIPUR ARISING FROM PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE I.T ACT FOR THE ASSESSMENT YEAR 2 006-07. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE DESPITE REPEATED NOTICES ISS UED, THEREFORE, WE PROPOSE TO HEAR AND DISPOSE OFF THIS APPEAL EX PARTE. THE REVE NUE HAS RAISED THE FOLLOWING GROUNDS :- (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE COMPLETE PENA LTY LEVIED U/S 271(1)(C) OF RS. 11,90,750/- ON LEGAL HEIR OF THE D ECEASED ASSESSEE INSTEAD OF ON PRO RATA BASIS. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE PENALTY U/S 2 71(1)(C) LEVIED ON 2 ITA NO. 320/JP/2018 SHRI SHRAWAN LAL MEENA, JAIPUR. LEGAL REPRESENTATIVE U/S 159(2)(B) R.W.S. 161(1) EV EN THOUGH PENALTY IS A CIVIL LIABILITY. (3) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, WI THDRAW OR INSERT ANY GROUND OR GROUNDS OF APPEAL BEFORE OR AT THE TI ME OF HEARING IS A CIVIL LIABILITY. 2. THE ASSESSEE HAS SOLD LAND AT VILLAGE BHANKROTA, SANGANER, JAIPUR OF RS. 1,75,37,564/- WHICH WAS CONSIDERED AT A CONSIDERATI ON OF RS. 1,77,41,000/-. THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 54B AND 54 F WHICH WERE DISALLOWED BY THE AO. CONSEQUENTLY, THE AO INITIATED THE PENALTY PROCEEDINGS IN RESPECT OF THE ADDITION OF CAPITAL GAIN DUE TO DISALLOWANCE OF CLA IM OF DEDUCTION UNDER SECTION 54B AND 54F OF THE ACT AND LEVIED THE PENALTY OF RS. 34 ,49,250/- VIDE ORDER DATED 18 TH MARCH, 2016. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A). THE LD. CIT (A) DELETED THE PENALTY IMPOSED BY THE AO UNDER SECTION 271(1)(C) ON THE GROUND THAT THE CLAIM OF BENEFIT UNDER SECTION 54B AND 54F DISALLOWED ON TECHNICAL REASONS WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF PARTICULARS OF INCOME. 3. WE HAVE HEARD LD. D/R AND CAREFULLY PERUSED THE RELEVANT MATERIAL ON RECORD. IN THE QUANTUM APPEAL, THE TRIBUNAL VIDE ORDER DATE D 24 TH NOVEMBER, 2016 HAS ALLOWED THE CLAIM OF THE ASSESSEE UNDER SECTION 54F OF THE ACT. HOWEVER, THE CLAIM UNDER SECTION 54B WAS TURNED DOWN BY THE TRIBUNAL B Y FOLLOWING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SH RI KALYA VS. CIT IN DB IT APPEAL NO. 112/2012. WE FURTHER NOTE THAT IN A SUBSEQUENT DECISION THE HONBLE JURISDICTIONAL HIGH COURT HAS DECIDED THE ISSUE OF DEDUCTION UNDER SECTION 54B IN THE 3 ITA NO. 320/JP/2018 SHRI SHRAWAN LAL MEENA, JAIPUR. CASE OF SHRI LAXMI NARAYAN & OTHERS VS. CIT, 402 IT R 117 (RAJ.) IN PARA 7 TO 7.3 AS UNDER :- 7. ON THE FIRST ISSUE OF SEC. 263 IN VIEW OF THE DECISION OF MALABAR INDUSTRIAL COMPANY LTD. (SUPRA) SEC. 263 PR OVISIONS ARE TAKEN ONLY ON THE GROUND OF PREJUDICIAL AND INTERES T LOSS OF THE REVENUE TO THE GOVERNMENT. MERELY CHANGE OF OPINION WILL NOT GIVE ANY RIGHT U/S 263 HENCE, THE ISSUE REGARDING S EC. 263 IS REQUIRED TO BE ANSWERED IN FAVOUR OF THE ASSESSEE A ND AGAINST THE DEPARTMENT. 7.2. ON THE GROUND OF INVESTMENT MADE BY THE ASSESS EE IN THE NAME OF HIS WIFE, IN VIEW OF THE DECISION OF DE LHI HIGH COURT IN SUNBEAM AUTO LTD. AND OTHER JUDGMENTS OF DIFFERE NT HIGH COURTS, THE WORD USED IS ASSESSEE HAS TO INVEST IT IS NOT SPECIFIED THAT IT IS TO BE IN THE NAME OF ASSESSEE. 7.3. IT IS TRUE THAT THE CONTENTIONS WHICH HAVE BEE N RAISED BY THE DEPARTMENT IS THAT THE INVESTMENT IS MADE BY TH E ASSESSEE IN HIS OWN NAME BUT THE LEGISLATURE WHILE USING LAN GUAGE HAS NOT USED SPECIFIC LANGUAGE WITH PRECISION AND THE S ECOND REASON IS THAT VIEW HAS ALSO BEEN TAKEN THE DELHI HIGH COU RT THAT IT CAN BE IN THE NAME OF WIFE. IN THAT VIEW OF THE MATTER , THE CONTENTION RAISED BY THE ASSESSEE IS REQUIRED TO BE ACCEPTED WITH REGARD TO SECTION 54B REGARDING INVESTMENT IN TUBEWELL AND OTHERS. IN OUR CONSIDERED OPINION, FOR THE PURPOSE OF CARRYING ON THE AGRICULTURAL ACTIVITY, TUBEWELL AND OTHER EXPEN SES ARE FOR BETTERMENT OF LAND AND, THEREFORE, IT WILL BE CONSI DERED A PART OF INVESTMENT IN THE LAND AND SAME IS REQUIRED TO BE A CCEPTED. THE HONBLE HIGH COURT HAS CONSIDERED ALL THE DECIS IONS ON THE POINT INCLUDING THE DECISION IN THE CASE OF KALYA VS. CIT (SUPRA). THE REFORE, IN VIEW OF THE LATEST 4 ITA NO. 320/JP/2018 SHRI SHRAWAN LAL MEENA, JAIPUR. DECISION OF HONBLE JURISDICTIONAL HIGH COURT, WE F IND THAT THE CLAIM OF THE ASSESSEE UNDER SECTION 54B WAS A BONAFIDE CLAIM AND DISALLOW ANCE OF THE SAME BY THE AO ON THE GROUND THAT THE LAND IN QUESTION WAS PURCHASED BY THE ASSESSEE IN THE NAME OF WIFE WILL NOT AMOUNT TO CONCEALMENT OF INCOME OR FU RNISHING OF INACCURATE PARTICULARS OF INCOME. 3.1 AS REGARDS THE DISALLOWANCE UNDER SECTION 54F, WHEN THE CLAIM OF THE ASSESSEE WAS ALREADY ALLOWED BY THE TRIBUNAL IN THE QUANTUM APPEAL, THEREFORE, THE BASIS OF LEVY OF PENALTY ITSELF WAS NO MORE IN EXIS TENCE. ACCORDINGLY, IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY ERROR OR ILLEG ALITY IN THE ORDER OF LD. CIT (A). 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER IS PRONOUNCED IN THE OPEN COURT ON 06/06/2 018. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 06/06/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ITO WARD 7(2), JAIPUR. 2. THE RESPONDENT SHRI SHRAWAN LAL MEENA, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 320/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 320/JP/2018 SHRI SHRAWAN LAL MEENA, JAIPUR.