The ITO, Ward-2(4), Surat V. Smt. Sarojben M.Kapadia, Surat

ITA 375/AHD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67578 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 19-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 08-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JANGID
• Assessee Lawyers: SHAH
• Keywords: Wrong claim
• Section: 143(3); 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.375/AHD/2013 A.YS: 2008-09 INCOME TAX OFFICER WARD 2(4), SURAT. VS SMT. SAROJBEN M. KAPADIA, 2/998, NURSING SHERI, MADAN MOHAN SHERI, SAGRAMPURA, SURAT PAN: ABOPK8171H (REVENUE) (ASSESSEE) REVENUE BY : SHRI J.P. JANGID, SR.D.R. ASSESSEE(S) BY : SHRI M.R. SHAH, A.R.. / // / DATE OF HEARING : 21/08/2013 / DATE OF PRONOUNCEMENT: 30/08/2013 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FRO M AN ORDER OF LEARNED CIT(A), SURAT, DATED 23.11.2012 AND THE GROUND ARGUED BEFORE US IS REPRODUCED BELOW: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS.3,59 ,118/- LEVIED U/S 271(1)(C) WITHOUT APPRECIATING THE FACT THAT THE AS SESSEE ADMITTED HER WRONG CLAIM MADE U/S 54F ONLY WHEN THE CASE WAS SEL ECTED UNDER SCRUTINY, THEREBY HAD COMMITTED A DEFAULT WHICH ATT RACTS PENALTY U/S 271(1)(C). 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT THIS A PPELLANT IS A CO-OWNER IN RESPECT OF A PROPERTY FOR WHICH A LONG TERM CAPITAL GAIN WAS OFFERED. AS PER THE FACTS IN BRIEF EMERGIN G FROM THE ITA NO.375/AHD/2013 ITO, SURAT VS. SAROJBEN M. KAPADIA A.Y. 2008-09 - 2 - ASSESSMENT ORDER PASSED U/S 143(3) DATED 29.11.2010 AND THE IMPUGNED PENALTY ORDER PASSED U/S 271(1)(C) DATED 1 0 TH OF MAY, 2011, A LONG TERM CAPITAL GAIN OF RS.15,84,804/- WA S DISCLOSED BY THIS ASSESSEE, IN RESPECT OF SALE OF A PLOT FOR AN AMOUNT OF RS.33,49,500/-, WHEREIN THE ASSESSEE HAD 50% SHARE. THE ASSESSEE AND HER HUSBAND WERE THE CO-OWNERS. A DEDUCTION U/S . 54 WAS CLAIMED. THE SAID CLAIM WAS WITHDRAWN DURING THE AS SESSMENT PROCEEDINGS. ON ACCOUNT OF THE WITHDRAWAL OF THE EX EMPTION, THE ALLEGATION OF THE REVENUE DEPARTMENT WAS THAT THE A SSESSEE WAS AWARE ABOUT THE PROPERTIES OWNED BY HER, THEREFORE, THE CLAIM OF DEDUCTION U/S. 54 WAS NOT ELIGIBLE. DUE TO SAID REA SON, CONCEALMENT PROCEEDINGS WERE INITIATED AND A PENALT Y OF RS.3,59,118/- WAS IMPOSED. ON THOSE VERY FACTS, IN THE CASE OF HER HUSBAND, NAMELY, SRI MADANLAL M. KAPADIA A DECISION HAS BEEN PRONOUNCED BY ITAT C BENCH AHMEDABAD IN ITA NO.376/AHD/2013 FOR A.Y. 2008-09 VIDE AN ORDER DATE D 23 RD OF AUGUST, 2013 AND REVENUES APPEAL WAS DISMISSED, RE LEVANT PARAGRAPH IS REPRODUCED BELOW: 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT IT IS NOT A FIT CAS E WHERE THE IMPUGNED PENALTY UNDER SECTION 271(L)(C) OF THE ACT IS ATTRACTED. ADMITTEDLY, THE ASSESSEE HAS NOT CONCEALED ANY INCO ME OR FILED ANY INACCURATE PARTICULARS OF INCOME, BUT ONLY ON MISTA KEN UNDERSTANDING OF THE PROVISIONS OF THE LAW CLAIMED THE DEDUCTION OF RS. 15,96,903/- UNDER SECTION 54F OF THE ACT. BONA FIDE MISTAKE OF THE ASSESSEE IN CLAIMING THE DEDUCTION CAN BE JUDGED FROM THE FACT THAT AS SOON AS THE MISTAKE WAS POINTED OUT, THE ASSESSEE IMMEDIATELY W ITHDREW ITS CLAIM AND PAID TAX THEREON, AND EVEN NOT PREFERRED ANY AP PEAL BEFORE THE HIGHER AUTHORITIES FOR THE ADDITION. THESE FACTS HA VE BEEN APPRECIATED BY THE LEARNED CIT(A), AND HE RECORDED A FINDING TH AT THE ASSESSEE VOLUNTARILY SURRENDERED THE CLAIM OF DEDUCTION FOR TAXATION, WHEN THE ASSESSEE NOTICED THAT IT WAS A WRONG CLAIM. THE LEA RNED CIT(A) HAS FURTHER RECORDED THAT THERE IS NO MATERIAL ON RECOR D TO SHOW THAT THE ITA NO.375/AHD/2013 ITO, SURAT VS. SAROJBEN M. KAPADIA A.Y. 2008-09 - 3 - AO HAS UNEARTHED NEW FACTS OR DUG OUT SOME INFORMAT ION WHICH WAS NOT FURNISHED BY THE ASSESSEE, THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED INCOME OR FURNISHED INACCURA TE PARTICULARS THEREOF SO AS TO ATTRACT PENALTY U/S.271(L)(C) OF T HE ACT. THE RELEVANT FINDINGS OF THE LEARNED CIT(A) GIVE AT PARA 6 OF TH IS ORDER ARE AS UNDER: '6. I HAVE CONSIDERED THE FACTS OF THE CASE AND FOU ND THAT THE MISTAKE COMMITTED BY ASSESSEE WAS BONA FIDE AND AS SOON AS HE CAME TO KNOW ABOUT THE MISTAKE, HE VOLUNTARILY SURRENDERED THE SAME AMOUNT FOR TAXATION. FROM THE SUBMISSIONS, IT IS CLEAR THAT ALL THE FACTS WERE BE FORE AO AND DEDUCTION WAS CLAIMED INADVERTENTLY IN THE RETURN W HICH WAS WITHDRAWN WHEN CAME TO NOTICE THAT IT WAS WRONGLY C LAIMED. HOWEVER, THERE IS NO MATERIAL ON RECORD TO SHOW THA T AO HAS UNEARTHED NEW FACTS OR DUG NUT SOME INFORMATION WHI CH-IUAS- NOT FURNISHED BY ASSESSEE THEREFORE IY CANNOT BE SA ID THAT ASSESSEE HAS CONCEALED INCOME OR FURNISHED INACCURA TE PARTICULARS THEREOF SO AS TO ATTRACT PENALTY U/S. 2 71(L)(C) OF THE ACT. THIS OPINION IS A SUPPORTED BY THE DECISION OF IT AT JODHPUR IN THE CASE OF DEVI DASS SUKHANI VS ITO (10 1 TTJ 551) ALSO WHEREIN IT WAS HELD THAT ASSESSEE HAVING WRONGLY CLAIMED EXEMPTION U/S. 54 IN THE RELEVANT ASSESSMEN T YEAR AFTER WITHDRAWING SUCH CLAIM MADE IN EARLIER YEAR U NDER BONA FIDE MISCONCEPTION AND BELIEF, PENALTY U/S. 271(L)( C) COULD NOT BE LEVIED IN ABSENCE OF ANY EVIDENCE TO ESTABLISH T HAT THE ASSESSEE HAS DELIBERATELY FURNISHED INACCURATE PART ICULARS OR HAD CONSCIOUSLY CONCEALED TAXABLE INCOME. IN A RECE NT CASE VIZ. CIT VS RELIANCE PETROPRODUCTS (P) LTD., REPORT ED IN 230 CTR 320, HON'BLE SUPREME COURT HAS ALSO HELD THAT I N ORDER TO ATTRACT THE PROVISIONS OF SECTION 271(L)(C), THE RE HAS TO BE CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF HIS INCOME BY THE ASSESSEE AND MAKING AN INCORRE CT CLAIM IN LAW CANNOT TANTAMOUNT TO FURNISHING OF INACCURAT E PARTICULARS THEREFORE PENALTY U/S. 271(L)(C) IS NOT ATTRACTED. THUS, TAKING INTO CONSIDERATION THE FACTS OF THE CA SE AND LEGAL POSITION AS EXPLAINED IN AFORESAID DECISIONS, IN MY OPINION, APPELLANT'S MISTAKE IS BONAFIDE AND HE HAS NOT DELI BERATELY CONCEALED THE INCOME OR FURNISHED INACCURATE PARTIC ULARS THEREFORE THE PROVISIONS OF SECTION 271(L)(C) ARE N OT ATTRACTED IN HIS CASE. WITH THIS CONCLUSION, I CANCEL THE PEN ALTY IMPOSED BY AO AND ALLOW THE APPEAL.' ADMITTEDLY, THE REVENUE HAS NOT BROUGHT ANY NEW MAT ERIAL TO ESTABLISH THERE IS A CONCEALMENT OF INCOME OR FURNI SHING OF INACCURATE PARTICULARS OF INCOME TO ATTRACT THE PENALTY UNDER SECTION 271(L)(C) OF THE ACT, EXCEPT THAT, ASSESSEE HAD ACCEPTED ITS MIS TAKE AND NOT SUO MOTTO REVISED ITS RETURN OF INCOME. FROM THE ORDER OF THE CIT(A), WE ITA NO.375/AHD/2013 ITO, SURAT VS. SAROJBEN M. KAPADIA A.Y. 2008-09 - 4 - FIND THAT THERE IS AN INADVERTENT ERROR IN CLAIMING THE DEDUCTION BY THE ASSESSEE, AND IN THE ABSENCE OF ANY EVIDENCE TO EST ABLISH THAT THE ASSESSEE HAD DELIBERATELY FURNISHED INACCURATE PART ICULARS OR CONCEALED ITS INCOME CONSCIOUSLY, WE ARE OF THE VIE W THAT THE PROVISIONS OF SECTION 271(1 )(C) DOES NOT GET ATTRACTED, AND THER EFORE, THE CIT(A) IS' JUSTIFIED IN DELETING THE PENALTY, WHICH WE CONFIRM , AND THE GROUND OF THE REVENUE IS DISMISSED. 2.1 SINCE ON IDENTICAL FACTS, A VIEW HAS ALREADY BE EN TAKEN BY RESPECTED CO-ORDINATE BENCH, THEREFORE, RESPECTFULL Y FOLLOWING THE SAME WE FIND NO FORCE IN THIS GROUND OF THE REVENUE . HENCE HEREBY DISMISSED. 3. IN THE RESULT, REVENUES APPEAL IS DISMISSED. SD/- SD/- (A.K. GARODIA ) (MUK UL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMB ER AHMEDABAD; DATED 30/08/2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD