Asstt.Comm.of Income Tax,Circle-6, Nagpur V. Laxmansingh T.Bhonsale (HUF), Nagpur

ITA 35/NAG/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1917 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 08-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR M BHUSARI
• Assessee Lawyers: S C THAKAR; C J THAKAR
• Keywords: Revised return

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI RAJENDRA , A M ITA NO. 35 / N AG / 20 1 1 ( ASSESSMENT YEAR : 200 5 - 0 6 ) D CIT, CIR - 6 , NAGPUR VS. LAXMANSINGH T. BHONSALE (HUF), JUNIOR BHONSLA PALACE MAHAL, NAGPUR. PAN/GIR NO. : A A AHL 1234 M ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : DR. M. BHUSARI /ASSESSEE BY : MR. C.J.THAKAR & MR. S.C.THAKAR DATE OF HEARING : 2 2 ND JAN ., 201 3 DATE OF PRONOUNCEMENT : 1 ST FEB. 201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH E DEPARTMENT HAS PREFERRED THIS APPEAL BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAINST THE ORDER OF LEANED CIT (A) - I I , NAGPUR (MAHARASHTRA) RELATING TO THE ASSESSMENT YEAR 2005 - 0 6 , WHICH H AS BEEN HEARD THROUGH E - COURT, MUMBAI . 2 . THE DEPARTMENT IS OBJECTING AGAINST THE DIRECTION OF THE LEARNED CIT(A) IN REGARD TO REWORKING OF PENALTY LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE ACT. ITA NO . 35 /20 1 1 2 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FIL ED REVISED RETURN ON 30 - 3 - 2006 ADMITTING LONG TERM CAPITAL GAINS AMOUNTING TO RS. 43,56,679/ - . HOWEVER, THE AO NOTED THAT INDEXATION CLAIMED FROM 1983 - 84 WAS WRONG AS THE PROPERTY WAS INHERITED BY WILL ONLY ON 16 - 4 - 1994. THEREFORE, HE ALLOWED THE INDEXATION FROM THE DATE OF PROPERTY REQUIRED BY THE ASSESSEE BY WAY OF WILL DATED 16 - 4 - 1995. HE COMPLETED THE TAXABLE CAPITAL GAIN AT RS. 2,53, 59,288/ - AS AGAINST RS. 43, 56,679/ - SHOWN BY THE ASSESSEE. PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) WERE ALSO INITIATED. 4 . LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND DIRECTED THE AO TO RECOMPUTED THE PENALTY. AGAINST PARTLY CANCELLATION OF THE PENALTY, THE DEPARTMENT FILED APPEAL BEFO RE THE TRIBUNAL. THE ASSESSEE HAD ALSO FILED APPEAL AGAINST PARTLY CONFIRMATION OF THE LEVY OF PENALTY. DURING THE APPELLATE PROCEEDING, THE COUNSEL OF THE ASSESSEE STATED THAT THE APPEAL FILED BY THE ASSESSEE HAS ALREADY BEEN DISPOSED BY THE TRIBUNAL IN ITA NO. 17/NAG/2011 VIDE ORDER DATED 9 - 11 - 2012. COPY OF THE ORDER WAS ALSO FILED. IT WAS SUBMITTED THAT THE TRIBUNAL HAS CANCELLED THE LEVY OF PENALTY, THEREFORE, PARTLY PENALTY DELETED BY THE LEARNED CIT(A) AGAINST WHICH THE DEPARTMENT IS IN APPEAL IS LIAB LE TO BE DISMISSED. ON THE OTHER HAND, LEARNED DR STATED THAT IT IS TRUE THAT APPEAL OF THE ASSESSEE HAS ALREADY BEEN DISPOSED OF BUT SINCE THERE WAS A CROSS APPEAL, THEREFORE, BOTH THE APPEALS SHOULD ITA NO . 35 /20 1 1 3 HAVE BEEN HEARD TOGETHER. ON A QUERY FROM THE BENCH, IT WAS ADMITTED BY THE LEARNED DR THAT THE FACTS IN RESPECT TO DEPARTMENTS APPEAL MAY NOT BE BROUGHT TO THE KNOWLEDGE OF THE TRIBUNAL WHILE HEARING THE APPEAL OF THE ASSESSEE. 5 . WE HAVE HEARD RIVAL SUBMISSION AND CONSIDERED THEM CAREFULLY. AFTER CONSIDE RING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT AGAINST THE LEVY OF PENALTY, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A), WHO REDUCED THE LEVY OF PENALTY IN PART AND PARTLY WAS SUSTAINED AND AGAINST THE SUSTENANCE OF THE PENALTY, THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL, WHERE THE GROUND WAS TAKEN AS UNDER : - 1. LD. CIT(A) ERRED IN CONFIRMING PENALTY LEVIED BY AO U/S 271(1)(C) OF THE I.T.ACT, 1961 AT 300% OF THE ALLEGED TAX EVADED. THE APPEAL OF THE ASSESSEE WAS DISPOSED OF BY THE TRIBUNAL IN ITA NO. 17/NAG/2011 FOR THE ASSESSMENT YEAR 2005 - 06 VIDE ITS ORDER DATED 9 - 11 - 2012. THE DETAIL REASONING HAS BEEN GIVEN BY THE TRIBUNAL WHILE CANCELLING THE LEVY OF PENALTY. SINCE THE LEVY OF PENALTY HAS BEEN CANCELLED, THEREFORE, IN O UR CONSIDERED VIEW THE APPEAL OF THE DEPARTMENT HAS NOW BECOME INFRUCTUOUS IN NATURE AS THE TRIBUNAL HAS ALREADY CONSIDERED THAT THE LEVY OF PENALTY WAS NOT JUSTIFIED, AND, THEREFORE, THE PENALTY WAS CANCELLED IN TOTO. THE FINDING HAS ALREADY BEEN ARRIVED AT BY THE TRIBUNAL WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE. THEREFORE, WITHOUT GOING INTO THE DETAIL FURTHER, WE HOLD THAT SINCE THE PENALTY HAS ALREADY BEEN DELETED IN TOTO BY THE TRIBUNAL, THE ITA NO . 35 /20 1 1 4 PARTLY DELETED THE PENALTY BY THE CIT(A) DOES NOT REQUI RE ANY FURTHER ADJUDICATION UPON. ACCORDINGLY, IN THE LIGHT OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONFIRM THE ORDER OF THE LEARNED CIT(A) . 6 . IN THE RESULT , APPEAL OF THE DEPARTMENT IS DISMISSED . ORDER PRONOUNCED IN THE E - COURT ON THIS 1 ST DAY OF FEB , 201 3 . - 201 3 SD/ - SD/ - ( ) ( RAJENDRA ) ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 01 / 02 / 201 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR, ITAT, MUMBAI / NAGPUR . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI