SHRI OM PRAKASH GUPTA, Jaipur V. ITO, Alwar

ITA 350/JPR/2011

• Counselvise Citation: 35023114 RSA 2011
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 20-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO. 350/ JP/2011 ASSESSMENT YEAR 1999-2000 PAN: ABPPG 3681 H SHRI OM PARKASH GUPTA V I.T.O. WARD 1(4) 356, LAJPAT NAGAR ALWAR ALWAR (APPELLANT ) (RESPONDENT) ASSESSEE BY : SHRI S.L. JAIN DEPARTMENT BY: SHRI D.K. MEENA DATE OF HEARING: 11-10-2011 DATE OF PRONOUNCEMENT: 14 -10-2011 ORDER PER N.L. KALRA, AM:- THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A), ALWAR DATED 22.2.2011. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. C.I.T(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 32,182/- U/S 271(1)(C) OF THE ACT. 2 THE ASSESSEE CLAIMED CAPITAL LOSS ON THE SALE OF A PLOT. WHILE COMPUTING THE LOSS THE ASSESSEE CLAIMED AN EXPENDIT URE OF RS. 80,000/- DURING THE FINANCIAL YEAR 1988-89. SURVEY U/S 133 A WAS CONDUCTED ON THE BUSINESS PREMISES OF THE ASSESSEE ON 3.11.2000. DU RING THE COURSE OF SURVEY THE ASSESSEE IN A STATEMENT ADMITTED THAT HE HAS NOT MADE ANY 2 CONSTRUCTION ON THE PLOT. THE PLOT WAS SOLD WITHOU T ANY CONSTRUCTION HAVING BEEN DONE AS THE ASSESSEE ALSO PAID PENALTY HAVING MAKING NO CONSTRUCTION. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBTAINED INFORMATION FROM THE URBAN IMPROVEMENT TRUST, ALWAR AND AS PER THE INFORMATION IT WAS FOUND THAT THE ASSESSEE HAS NOT MADE ANY CONSTRUCTI ON. THE AO ALSO OBTAINED THE STATEMENT OF THE PURCHASER AND THE PUR CHASER ALSO ADMITTED THAT NO CONSTRUCTION WAS DONE ON THE PLOT. 3 DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FURNISHED FOLLOWING DETAILS / EVIDENCE: (I) ALL EVIDENCE OF THE BILL IN RESPECT OF INVESTME NT MADE DURING THE FINANCIAL YEAR 1988-89 WERE FURNISHED AND THE CONTRACTOR WAS ALSO PRODUCED PERSONALLY. (II) THE CONTRACTOR IN HIS STATEMENT ADMITTED THAT HE HAS CARRIED OUT THE FOUNDATION UP TO PLINTH LEVEL DURING FINANCIAL YEAR 1988-89 AND THE AO WAS SATISFIED. (III) THE CONSTRUCTION OF PLINTH AREA IS DULY SHOWN IN THE BOOKS OF ACCOUNTS AND SUCH BOOKS OF ACCOUNTS WERE PRODUCED B EFORE THE AO. (IV) THE ASSESSEE PURCHASED THE PLOT WITH THE INTEN TION TO CONSTRUCT THE HOUSE FOR RESIDENTIAL PURPOSE AND DUE TO THIS A CTIVITY OF FILLING THE LAND AND CONSTRUCTION UP TO PLINTH LEVEL, WAS CARR IED OUT IN THE YEAR 1988-89. SUBSEQUENTLY THE ASSESSEE CHANGED ITS IDE A TO CONSTRUCT THE HOUSE AT ALWAR AND DECIDED TO BUILD A HOUSE AT DELH I OUT OF THE SALE PROCEEDS OF THE PLOT. 4 HOWEVER, THE ABOVE CONTENTION WAS REJECTED BY THE AO AND THE AO ALSO HELD THAT THE ASSESSEE HAS FABRICATED THE EVID ENCE TO COUNTER THE EVIDENCE COLLECTED BY THE DEPARTMENT. 5 THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A ) AND THE APPEAL OF THE ASSESSEE WAS DISMISSED AND THUS THE ADDITION MA DE BY THE AO, WAS CONFIRMED. THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL 3 ALSO DISMISSED THE APPEAL VIDE ORDER DATED 15.12.20 09. WHILE DISMISSING THE APPEAL OF THE ASSESSEE THE TRIBUNAL HAS REFERRED TO THE STATEMENT OF THE ASSESSEE MADE DURING THE COURSE OF SURVEY. 6 THE AO IMPOSED PENALTY U/S 271(1)(C). DURING THE COURSE OF PENALTY PROCEEDINGS THE ASSESSEE FILED THE REPLY. THE ASSE SSEE HAS REFERRED TO THE EVIDENCES FILED BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS STATED THAT THE ASSESSEE IN HIS STATEMENT AD MITTED THAT NO CONSTRUCTION HAS BEEN DONE AS ACCORDING TO HIM FILLING OF PLOT A ND CONSTRUCTION UP TO PLINTH AREA, DOES NOT COME UNDER THE CONSTRUCTION O N THE PLOT. MOREOVER, NO PERMISSION IS REQUIRED FROM URBAN IMPROVEMENT TRUST FOR CONSTRUCTION UP TO PLINTH AREA. THE ASSESSEE WAS ADVISED THAT THE CON STRUCTION UP TO PLINTH AREA SHOULD BE DEMOLISHED SO AS TO GET THE MORE PRICE OF THE EMPTY PLOT. THE REPLY OF THE ASSESSEE WAS NOT FOUND ACCEPTED BY THE AO. THE AO ACCORDINGLY IMPOSED PENALTY OF RS. 32,182. 7 THE LD. CIT(A) HAS CONFIRMED THE PENALTY AFTER OB SERVING AS UNDER:- I HAVE GONE THROUGH THE PENALTY ORDER AND REPLY SU BMITTED THE LD. LD. AR. IT IS CLEAR FROM ABOVE THAT THE LD. CIT(A) , ALWAR AND HON'BLE ITAT , JAIPUR CONFIRMED ;THE ADDITION MADE BY THE AO. IT IS PROVED THAT THE APPELLANT WILLFULLY AND DELIBERATEL Y CONCEALED HIS INCOME AND FURNISH INACCURATE PARTICULARS OF SUCH I NCOME. THE AO IS RIGHTLY IMPOSED THE PENALTY CONCEALMENT OF RS. 32,1 82/- U/S 271(1)(C). ON THE APPELLATE STAGE THE LD. AR OF THE APPELLANT FILED VARIOUS CITATIONS BUT NOT SQUARELY MATCH IN THIS CASE. IN THE GIVEN CIRCUMSTANCES THE PENALTY OF RS. 32,182/- IS UPHELD AND THUS THE APPELLANT GETS NO RELIEF. 8 WE HAVE HEARD BOTH THE PARTIES. THE PENALTY PRO CEEDINGS ARE SEPARATE AND DISTINCT FROM THE ASSESSMENT PROCEEDINGS. DURI NG THE COURSE OF PENALTY PROCEEDINGS THE ASSESSEE FILED CERTAIN EVIDENCES WH ICH WERE NOT FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT HAS BEEN STATED BY HIM THAT THE 4 CONSTRUCTION OF PLINTH LEVEL WAS DEMOLISHED ON THE ADVICE OF THE BROKER. THE EXPENDITURE INCURRED HAS BEEN ENTERED IN THE BOOKS OF ACCOUNTS AND IT IS NOT THE CASE OF THE REVENUE THAT THE BOOKS OF ACCOUNTS ARE NOT GENUINE. THE ASSESSEE PRODUCED THE CONTRACTOR WHICH HAS DONE THE CONSTRUCTION AND THE AO HAS NOT CROSS-EXAMINED SUCH CONTRACTOR. THE ASS ESSEE IN THE EXPLANATION FILED BEFORE THE AO HAS GAVE THE REASONS AS TO WHY THE EVIDENCES COLLECTED BY THE DEPARTMENT ARE NOT SUFFICIENT TO IMPOSE PENA LTY. WHILE EXAMINING THE PENALTY ONE HAS TO CONSIDER THE EXPLANATION GIV EN BY THE ASSESSEE. THE EXPLANATION HAS NOT BEEN FOUND TO BE FALSE OR INACC URATE. IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE THE EXPLANATION. WE, THEREFORE, FEEL THAT IT IS NOT TH E CASE WHERE PENALTY IS TO BE IMPOSED. THE PENALTY IMPOSED BY THE AO IS CANCELLE D. 9 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 14 - 10-2011 SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED: 14 /10/2011 SURESH COPY FORWARDED TO :- 1 SHRI OM PARKASH GUPTA, ALWAR 2 ITO, WARD 1(4) ALWAR 3 THE LD. CIT 4 THE LD. CIT(A) 5 THE LD.DR 6 THE GUARD FILE (ITA NO.39/JP /11) A.R, ITAT, JAIPUR 5 6 7 8 9 10