DEEPIKA AGARWAL ( DEEPIKA NATH), MUMBAI V. ITO 18(1)-3, MUMBAI

ITA 3312/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49119 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 28-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALEXANDER CHANDY
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI T. R. SOOD, AM I.T.A. NO.: 3312/MUM/2010 ASSESSMENT YEAR : 2005-06 MRS. DEEPIKA AGARWAL, 401, SUN INDUSTRIAL ESTATE, LOWER PAREL (W), MUMBAI 400 013 PAN NO: AADPA5298F VS. INCOME TAX OFFICER WARD 18(1)-3, PIRAMAL CHAMBER, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI ALEXANDER CHANDY ORDER PER T.R. SOOD (AM) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER DATED 22.02.2010 OF COMMISSIONER OF INCOME TAX (APPEALS)- XVII, MUMBAI AND RELATES TO THE ASSESSMENT YEAR 2005-06. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLO WING GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CAS E AND IN LAW, THE AUTHORITIES BELOW, HAVE ERRED IN LEVYING / CONF IRMING THE PENALTY U/S. 271(1)(C) OF THE ACT.(1)(C) OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.33,601/- AND THE REASONS ASSIGNED FOR DOING S O, WERE WHOLLY WRONG, IRRELEVANT, AND NOT IN ACCORDANCE WITH THE F ACTS AND CIRCUMSTANCES OF THE CASE. 3. NONE APPEARED DESPITE NOTICE, BUT THE PERUSAL OF RECORD SHOWS THAT ONLY ISSUE RAISED IS LEVY OF PENALTY U/S.271(1)(C) AND T HE AMOUNT IS VERY SMALL. HOWEVER DETAILED EXPLANATION HAS BEEN FILED VIDE LE TTER DATED 27.05.2011, BY WHICH REQUEST HAS BEEN MADE TO DECIDE THE APPEAL ON THE BASIS OF WRITTEN SUBMISSIONS. 2 4. THE LD. DR WAS HEARD. 5. AFTER CONSIDERING THE SUBMISSION OF THE LD. DR AND THE WRITTEN SUBMISSIONS ON BEHALF OF THE ASSESSEE, WE FIND THAT ASSESSEE HAD FILED A RETURN IN WHICH CAPITAL LOSS OF RS.1,65,352/- WAS DECLARED ON ACCOUNT OF SALE OF PROPERTY. THE VALUE OF THE SALE CONSIDERATION WAS T AKEN AS PER THE SALE DEED. THE VALUE AS PER THE STAMP DUTY AUTHORITIES WAS HIG H AND CONSEQUENTLY, THE AO HAD ADOPTED THE CONSIDERATION AS PER THE STAMP D UTY VALUATION. ON THIS BASIS, PENALTY HAS ALSO BEEN IMPOSED, AS NO ONE APP EARED BEFORE THE AO DURING THE PENALTY PROCEEDINGS AND HENCE MINIMUM PENALTY W AS LEVIED. 6. BEFORE THE LD. CIT(A) IT WAS MAINLY SUBMITTED TH AT AO HAS DETERMINED THE AMOUNT OF CONCEALMENT AT RS.1,00,803/-, BUT IT IS NOT CLEAR HOW SUCH AMOUNT HAS BEEN ARRIVED AT, THEREFORE, LEVY OF PENA LTY WAS NOT JUSTIFIED. THE LD. CIT(A) DECIDED THE ISSUE VIDE PARA 5 WHICH IS AS UN DER :- I HAVE CARESULLY CONSIDERED THE FACTS OF THE CASE, ARGUMENTS OF THE ASSESSING OFFICER AND THE SUBMISSIONS OF THE AR OF THE APPELLANT. I FIND THAT THE ASSESSING OFFICER HAS NOT CORRECTLY C ALCULATED THE AMOUNT OF CONCEALMENT. HOWEVER REDUCTION OF CLAIMED LOSS BY ADOPTING VALUATION AMOUNTS WOULD BE FINDING OF INAC CURATE PARTICULARS OF INCOME. APPELLANT HAS CLAIMED LOSS I N RETURN OF INCOME WHICH WAS NOT ADMISSIBLE. THERE IS NO NOTION AL ELEMENT INVOLVED IN THIS CALCULATION. THEREFORE, REDUCTION OF CLAIMED LOSS BY A SPEAKING ORDER WOULD MEAN THAT APPELLANT HAS MADE I NCORRECT CLAIM AND PENALTY SHOULD BE RIGHTLY LEVIED FOR SUCH A CLA IM. THE LEVY OF PENALTY IS UPHELD. 7. IN THE WRITTEN SUBMISSIONS, IT HAS BEEN POINTED OUT THAT ASSESSEE HAD SOLD A SHOP FOR RS.1,50,000/- WHICH WAS PURCHASED I N 1990 FOR A SUM OF RS.1,13,001/-, INDEXED COST WORKED OUT TO RS.3,15,3 52/- AND ACCORDINGLY, CAPITAL LOSS OF RS.1,65,352/- WAS DECLARED. THE AO ADOPTED THE SALE CONSIDERATION AT RS.3,15,005/- AS PER THE VALUE ADO PTED FOR STAMP DUTY PURPOSE AND THE LOSS GOT REDUCED TO RS.347/-. WHEN ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) AND DENIED THE FINDINGS OF TH E AO, THE MATTER WAS ULTIMATELY REMANDED TO THE FILE OF AO FOR REMAND RE PORT. IT HAS BEEN ALLEGED THAT AO HAS NOT GOT THE PROPERTY VALUED FROM ANY VA LUATION OFFICER AS REVENUE IS NOT INTERESTED IN PERUSING THE MATTER. THERE IS, THEREFORE, NO REVENUE LOSS 3 AND THE ASSESSMENT IS STILL PENDING. IT HAS BEEN FU RTHER CONTENTED IN THE WRITTEN SUBMISSIONS THAT ASSESSEE HAD NOT CONCEALED ANY PARTICULARS AND MERE ADOPTION OF VALUATION AS PER SECTION 50C WHICH TOO WAS DONE WITHOUT REFERENCE TO THE VALUATION OFFICER, CANNOT BE ALLOWED TO LEVY OF PENALTY. 8. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDE R OF THE LD. CIT(A). 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT IN THE ASSESSMENT ORDER THE AO HAS MERELY TAKEN THE SALE C ONSIDERATION VALUE AS PER THE VALUATION ADOPTED BY SUB REGISTRAR. THE PROPERT Y WAS NEVER REFERRED TO THE VALUATION OFFICER, THEREFORE, WE ARE OF THE VIEW TH AT THIS IS NOT A CASE OF CONCEALMENT, BECAUSE ASSESSEE HAS ALREADY STATED TH E SALE CONSIDERATION MENTIONED IN THE SALE DEED ONLY WAS RECEIVED AND DE CLARED THE LOSS ACCORDINGLY. CONSIDERING THESE FACTS AND ALSO THE SMALLNESS OF T HE AMOUNT, WE ARE OF THE VIEW THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALT Y. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DELETE THE PENALTY. 10. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED . ORDER PRONOUNCED ON THIS 15 TH DAY OF JUNE, 2011. SD/- SD/- (D. MANMOHAN) (T. R. SOO D) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DT: 15/06/2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, D - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI