I.T.O., Ward-2(4), Mainpuri V. Dr. Vikas Chand Dubey, Mainpuri

ITA 330/AGR/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72763 (ITAT-AGRA)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-01-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 10-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ATHESHAM ANSARI
• Assessee Lawyers: SAHIB P SATSANGEE
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO. 330/AGRA/ 2013 ASSESSMENT YEAR: 2006-07 INCOME TAX OFFICER (AO), VS. DR. VIKAS CHAND DUBEY , WARD-2(4), MAINPURI. COURT ROAD, MAINPURI. (PAN ABVPD3449E) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ATHESHA M ANSARI, JR. D.R. RESPONDENT BY : SHRI SAHIB P. SATSANGEE , C.A. DATE OF HEARING : 28.01.2014 DATE OF PRONOUNCEMENT : 31.01.2014 ORDER PER PRAMOD KUMAR,ACCOUNTANT MEMBER: BY WAY OF THIS APPEAL, THE REVENUE HAS CHALLENGED C ORRECTNESS OF LEARNED CIT(A)S ORDER DATED 26.07.2013, IN THE MATTER OF P ENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEA R 2006-07. GRIEVANCES RAISED BY THE REVENUE ARE AS FOLLOWS :- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.10,90,100/- BY IGNORING THE FACT THAT ADDITION O F RS.48,56,724/-, THIS PENALTY IS BASED ON, WAS CONSECUTIVELY CONFIRM ED IN THE FIRST APPEALS ON TWO OCCASIONS I.E. ON 24.03.2009 AND 3.8 .2012 AGAINST THE ORIGINAL ASSESSMENT AND RE-ASSESSMENT. 2. THAT THE LD. CIT(A) HAS ARBITRARILY OVERLOOKED T HE LEGAL POSITION OF PROVISO TO SECTION 54F(1) IN THE BODY OF PENALTY OR DER THAT THE EXEMPTION WILL NOT BE ADMISSIBLE IF THE ASSESSEE OW NS MORE THAN ONE RESIDENTIAL HOUSE ON THE DATE OF TRANSFER OF ASSET (YIELDING LONG TERM CAPITAL GAIN) OTHER THAN THE NEW ONE WHEREUPON THE EXEMPTION U/S 54F IS CLAIMED. ITA NO.330/AGRA/2013 A.Y.2006-07 2 3. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACTS INCORPORATED IN THE BODY OF PENALTY ORDER THAT ASSESSEE OWNED TWO R ESIDENTIAL HOUSES OTHER THAN THE NEW ONE ON THE DATE OF TRANSFER OF O LD ASSET GENERATING LONG TERM CAPITAL GAIN. 4. THAT THE CIT(A) HAS ARBITRARILY OVERLOOKED THE M ATERIAL FACTS SUBSTANTIATING THE CONCEALMENT ON PART OF THE ASSES SEE WHO UNLAWFULLY CLAIMED EXEMPTION U/S 54F BY PLEADING THE RENTAL PR OPERTY IN POSSESSION OF THE TENANTS LIKE BANK OF BARODA AND W HO AS COMMERCIAL PROPERTY. 5. THAT THE CIT(A) WHILE DELETING THE PENALTY IGNOR ED UNLAWFUL EXEMPTION U/S 54F CLAIMED IN RESPECT OF INVESTMENT OF RS.3 LAKH MADE IN RESPECT OF THIRD RESIDENTIAL HOUSE PROPERTY/FLAT AT GHAZIABAD IN THE JOINT NAMES I.E. THE ASSESSEE AND HIS SON SHRI ROHI T DUBEY. 6. THAT THE CIT(A) WHILE DELETING THE PENALTY IGNOR ED ANOTHER IMPORTANT & GLARING FACTS OF INVESTMENT OF RS.18 LAKH AS ADMI TTEDLY GIVEN AWAY BY THE ASSESSEE TO PURCHASE ONE MORE FLAT AT GHAZIA BAD. ON THIS ADVANCED AMOUNT, EXEMPTION U/S 54F WAS ALSO CLAIMED . 7. THAT THE FIRST APPELLATE AUTHORITY HAS FAILED TO APPRECIATE ALL THE MATERIAL AND SUBSTANTIAL FACTS INCORPORATED IN THE PENALTY ORDER, ESTABLISHING THE DELIBERATELY WRONGFUL EXEMPTION U/ S 54F AND CONSEQUENTLY WILLFUL CONCEALMENT ON PART OF THE ASS ESSEE. 2. DURING THE COURSE OF HEARING LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE ORDER DATED 08.03.2013 PASSED BY T HE TRIBUNAL IN THE QUANTUM PROCEEDINGS WHEREBY THE QUANTUM ADDITION IN RESPECT OF WHICH THE IMPUGNED PENALTY IS LEVIED WAS DELETED. IN VIEW OF THE FACT THAT THE QUANTUM ADDITION ITSELF IS DELETED, THE VERY BASIS OF PENALTY CEASES TO HOLD G OOD IN LAW. 3. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. (ORDER PRONOUNCED IN THE OPEN COURT ON 31.01.2014) SD/- SD/- (BHAVNESH SAINI) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATE: 31.01.2014 ITA NO.330/AGRA/2013 A.Y.2006-07 3 PBN/* COPY OF THE ORDER FORWARDED TO:- APPELLANT, RESPONDENT, CIT (APPEALS) CONCERNED CIT CONCERNED, D.R., ITAT, AGRA BENCH, AGRA GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY