SHRI DULI CHAND MALI, Jaipur V. INCOME TAX OFFICER, WARD-7-2, Jaipur

ITA 34/JPR/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8505 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHLA JCIT DHK
• Assessee Lawyers: KRISHNA SHARMA
• Keywords: Bonafide belief; Set aside
• Section: 271(1)(c); 143(3); 54B; 54F

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES B, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA -@ ITA NO. 34/JP/2019 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 M/S SHRI DULI CHAND MALI, GULLAR DAM, SHIKARPURA ROAD, SANGANER, JAIPUR. CUKE VS. I.T.O., WARD 7(2), JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: AHWPM 8416 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI KRISHNA SHARMA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.K. MAHLA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 08/04/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 09/04/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A)-3, JAIPUR DATED 05/10/2018 FOR THE A.Y. 2009-10 IN THE MATTER OF IMPOSITION OF PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). IN THIS CASE, PENALTY WAS IMPOSED BY THE A.O. WITH REGARD TO DENIAL OF CLAIM OF DEDUCTION U/S 54B AND 54F OF THE ACT AND UNEXPLAINED CASH OF RS. 19,00,000/- DEPOSITED IN THE BANK ACCOUNT. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ITA 34/JP/2019_ M/S SHRI DULI CHAND MALI VS ITO 2 ACT IN THIS CASE ON 30/11/2011 ASSESSING THE INCOME OF THE ASSESSEE AT RS. 58,59,220/- WHICH INCLUDED ADDITION MADE ON ACCOUNT OF LONG-TERM CAPITAL GAINS OF RS. 37,98,969/-, UNEXPLAINED CASH DEPOSITS IN BANK OF RS. 19,00,000/- AND INTEREST INCOME OF RS. 14,941/-. DEDUCTIONS CLAIMED U/S 54B AND 54F WERE DENIED. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO CONFIRMED THE ORDER OF THE A.O. 3. IN THE QUANTUM APPEAL FILED BY THE ASSESSEE BEFORE THE TRIBUNAL, THE TRIBUNAL VIDE ITS ORDER DATED 12/02/2016, ALLOWED THE RELIEF WITH RESPECT TO DEDUCTION CLAIMED U/S 54F OF THE ACT. HOWEVER, THE ISSUE WITH REGARD TO CASH DEPOSIT OF 19.00 LACS WAS RESTORED BACK TO THE FILE OF THE A.O.. THEREAFTER THE A.O. PASSED ORDER U/S 143(3)/254 OF THE ACT DATED 20/12/2016 AND ADMITTED THE BANK DEPOSIT OF RS. 19.00 LACS. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL LAS ORDER PASSED BY THE TRIBUNAL IN THE QUANTUM APPEAL DATED 12/02/2016. FROM THE RECORD WE FOUND THAT THE ASSESSEES CLAIM FOR DEDUCTION U/S 54B WAS DECLINED ON THE PLEA THAT THE SALE PROCEEDS OF AGRICULTURAL LAND WAS INVESTED BY THE ASSESSEE FOR ACQUIRING AGRICULTURAL LAND BUT IN HIS WIFES NAME AND NOT IN HIS OWN NAME. THE FACT THAT SALE PROCEEDS OF LAND WAS AGAIN INVESTED IN AGRICULTURE LAND WAS NOT DISPUTED BY THE A.O. THE ASSESSEE BEING AN ILLITERATE PERSON WAS UNDER BONAFIDE BELIEF THAT REINVESTMENT IN AGRICULTURAL LAND WILL MAKE HIM ITA 34/JP/2019_ M/S SHRI DULI CHAND MALI VS ITO 3 ELIGIBLE FOR DEDUCTION U/S 54B, THEREFORE, INVESTED IN THE NAME OF HIS WIFE. HOWEVER, THE ISSUE WITH REGARD TO ALLOWING CLAIM OF DEDUCTION U/S 54B OF THE ACT, EVEN IF THE INVESTMENT IS NOT IN THE NAME OF ASSESSEE BUT IN THE NAME OF WIFE/SON OF THE ASSESSEE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY SOME OF THE HONBLE HIGH COURTS. THUS, THE ISSUE IS A DEBATABLE ONE. UNDER THESE FACTS AND CIRCUMSTANCES, THE PENALTY U/S 271(1)(C) OF THE ACT CANNOT BE IMPOSED MERELY BECAUSE THE INVESTMENT WAS NOT IN THE NAME OF ASSESSEE BUT IN THE NAME OF WIFE. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE PENALTY IMPOSED WITH REGARD TO DENIAL OF CLAIM FILED BY THE ASSESSEE WHICH IS DEBATABLE ONE. SO FAR AS THE PENALTY WITH RESPECT TO ALLEGED DEPOSIT OF BANK ACCOUNT IS CONCERNED, WE FOUND THAT THE A.O. HIMSELF IN THE SET ASIDE PROCEEDINGS HAS DELETED THE ADDITION. ADDITION MADE BY DECLINING CLAIM OF DEDUCTION U/S 54F HAS ALREADY ALLOWED BY THE TRIBUNAL IN ASSESSEES FAVOUR. ACCORDINGLY, THE PENALTY ORDER HAS NO LEGS TO STAND WITH RESPECT TO THIS ADDITION ALSO. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH APRIL, 2019. SD/- SD/- FOT; IKY JKO JES'K LH 'KEKZ (VIJAY PAL RAO) (RAMESH C SHARMA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09 TH APRIL, 2019 ITA 34/JP/2019_ M/S SHRI DULI CHAND MALI VS ITO 4 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S SHRI DULI CHAND MALI, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 7(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 34/JP/2019) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR