Sh. Satish Kumar Gupta, Karnal V. ACIT, Karnal

ITA 3839/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2911 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 04-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 02-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NARENDRA CHHILLAR
• Section: 143(3); 133A

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3839/DEL/2014 (ASSESSMENT YEAR: 2008 - 09 ) SATISH KUMAR GUPTA, LIBERTY HOUSE, RAILWAY ROAD, KARNAL PAN:ACAPG9886A VS. ACIT, CIRCLE, KARNAL (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. NARENDRA CHHILLAR, ADV REVENUE BY: SH. NK BANSAL, SR. DR DATE OF HEARING 04/05 / 2017 DATE OF PRONOUNCEMENT 29 / 05 / 2017 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A), KARNAL DATED 18.11.2013 WHEREIN, PENALTY U/S 271(1)(C) OF THE ACT OF RS. 72627/ - LEVIED BY THE ASSESSING OFFICER VIDE ORDER DATED 18.01.2013 IS CONFIRMED. THE ASSESSEE HAS RAISED ONLY ONE GROUND OF APPEAL THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE APPELLANT THE ORDER OF THE LD CIT(A) IN CONFIRMING THE ORDER OF THE LD ACIT IN IMPOSING PENALTY OF RS. 72627/ - U/S 271(1)(C) FOR ALLEGED WILLFUL CONCEALMENT OF INCOME AND FILI NG OF INACCURATE PARTICULARS OF INCOME IS ALTOGETHER ARBITRARY, ILLEGAL, VOID AND UNCALLED FOR. 2. THE BRIEF FACTS OF THE CASE IS THAT ASSESSEE IS AN INDIVIDUAL WHO IS A PARTNER IN FIRM AND DERIVING INCOME FROM A SHARE OF PROFIT AND ALSO SHORT TERM AND LONG TERM CAPITAL GAIN AND SOME LEASE RENT. FOR THE YEAR HE FILED RETURN OF INCOME DECLARING INCOME OF RS. 11354570/ - ON 30.03.2009 AND ON 09.12.2010 ASSESSMENT U/S 143(3) OF THE ACT WAS MADE AT RS. 12225078/ - . THE IMPUGNED ADDITION ON WHICH PENALTY IS LEVIED I S OF RS. 320508/ - . DURING THE YEAR THE ASSESSEE HAS SHOWN THE LONG - TERM CAPITAL GAIN OF RS. 9328458/ - ON SALE OF AGRICULTURAL LAND AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS ASKED TO FURNISH RECONCILIATION OF SALE PRICE OF LAND WITH THE COMPUTA TION OF CAPITAL GAIN. IT WAS SUBMITTED BY THE ASSESSEE THAT WHILE WORKING OUT THE LONG TERM CAPITAL GAIN SALE CONSIDERATION IS INADVERTENTLY TAKEN AT RS. 10480842/ - PAGE 2 OF 3 INSTEAD OF RS. 10801350/ - AND THEREFORE, THERE WAS A SHORT LONG TERM CAPITAL GAIN SHOWN BY THE ASSESSEE OF RS. 320508/ - . ON THIS SUM LD ASSESSING OFFICER WHILE MAKING ADDITION HELD THAT ASSESSEE HAS CONCEALED PARTICULARS OF HIS INCOME/ FURNISHED INACCURATE PARTICULARS OF INCOME THEREFORE, PENALTY PROCEEDINGS U/S 271(1)(C) WAS INITIATED. SUBSEQUE NTLY VIDE ORDER DATED 18.01.2013 THE LD ASSESSING OFFICER REJECTING THE EXPLANATION OF THE ASSESSEE VIDE LETTER DATED 07.11.2012 LEVIED THE PENALTY HOLDING THAT IT IS ESTABLISHED BEYOND DOUBT THAT THE ASSESSEE HAS WILLFULLY CONCEALED THE PARTICULARS OF HIS INCOME AND FURNISHED INACCURATE PARTICULARS OF INCOME AND THEREFORE LIABLE FOR IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT. THEREFORE, LD ASSESSING OFFICER LEVIED A PENALTY OF RS. 72627/ - . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT(A) WHO CONFI RMED THE PENALTY BASED ON THE DECISION OF THE HON'BLE SUPREME COURT IN CASE OF MAK DATA LTD VS. CIT 358 ITR 593. THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. 3. THE LD AR REITERATED THE SAME ARGUMENTS, WHICH WERE RAISED BEFORE THE LOWER AUTHORITIES AND FU RTHER SUBMITTED THAT ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE HON'BLE DELHI HIGH COURT IN CASE OF ITA NO. 1190/2011. HE FURTHER SUBMITTED THAT LD ASSESSING OFFICER HAS LEVIED THE PENALTY ON TWIN CHARGES, WHICH WAS ALSO MENTIO NED IN ASSESSMENT ORDER AS WELL AS THE PENALTY ORDERS, AND THEREFORE, ON THIS BASIS THE PENALTY IS NOT SUSTAINABLE. 4. THE LD DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. AT THE TIME OF MAKING AN ADDI TION THE LD ASSESSING OFFICER HAS RAISED THE TWIN CHARGES OF CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME. THE ASSESSEE REPLIED ON THE FACTUAL ASPECTS VIDE ITS LETTER DATED 07.11.2012 HOLDING THAT IT IS AN INADVERTENT MISTAKE AND T HEREFORE, PENALTY MAY NOT BE LEVIED. THE LD ASSESSING OFFICER LEVIED PENALTY ALSO ON THE TWIN CHARGES. THE LD CIT(A) HAS NOT DISCUSSED THAT WHETHER THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME OR HAS CONCEALED HIS INCOME BUT CONFIRMED THE PE NALTY MERELY RELYING ON THE DECISION OF THE HON'BLE SUPREME COURT, WHICH WAS ON CONCEALMENT OF INCOME. IN THAT PARTICULAR CASE THE ASSESSEE SURRENDERED A SUM OF RS. 40.74 LAKHS ON ACCOUNT OF SHARE CAPITAL THE DOCUMENTS FOR WHICH WERE FOUND DURING THE COURS E OF SURVEY U/S 133A OF THE ACT. HOWEVER, IN THE IMPUGNED CASE THE SALE CONSIDERATION WAS MENTIONED IN THE THREE SALE DEEDS SUBMITTED BEFORE THE LD ASSESSING OFFICER FOR WHICH SALE CONSIDERATION WAS RECORDED THEREIN. THE ASSESSEE HAS MERELY TAKEN INCORRECT TOTAL OF SALES FIGURE. THEREFORE, APPARENTLY IT IS AN INADVERTENT MISTAKE FOR WHICH PENALTY CANNOT BE LEVIED U/S 271(1)(C) OF THE ACT. FURTHER, EVEN OTHERWISE THE ASSESSING OFFICER HAS NOT SPECIFIED PAGE 3 OF 3 ON WHICH CHARGE PENALTY IS LEVIABLE. THEREFORE, FOLLOWIN G THE PRINCIPLES ENUNCIATED BY HON'BLE KARNATAKA HIGH COURT CIT VS. MUNJUNATHA COTTON AND GINNING FACTORY 359 ITR 561 IN PARA NO. 63 OF THAT ORDER IT IS NECESSARY THAT ASSESSEE MUST BE AWARE OF THE SPECIFIC CHARGE BEFORE PENALTY IS LEVIED. IN VIEW OF THI S, WE DO NOT HAVE ANY HESITATION IN DELETING THE PENALTY OF RS. 72627/ - LEVIED U/S 271(1)(C) OF THE ACT. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 9 / 05 / 2017 . - S D / - - S D / - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 9 / 05 / 2017 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI