Smt. Narbada Devi Lathi, BHILWARA V. ITO, BHILWARA

ITA 387/JODH/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9643 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 23-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Bonafide belief; Competent authority; Bonafide mistake

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO. 387 /JODH/2016 ASSESSMENT YEAR:20 08 - 09 SMT. NARBADA DEVI LATHI VS. THE ITO C/O SHRI ASHOK KUMAR KABRA, WARD - 5 ADVOCATE, ASHOK BHAWAN BH ILWARA BHILWARA PAN NO. AAHPL7947G (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. S.K. MEENA DATE OF HEARING : 01 /0 3 /2017 DATE OF PRONOUNCEMENT : 03/03/2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAIL ING THE CORRECTNESS OF THE ORDER DT. 04/10/2016 OF THE LD. CIT(A) PERTAINING TO 2008 - 09 A.Y. WHEREIN THE LEVY OF PENALTY UNDER SECTION 271(1)(C) BY THE AO HAS BEEN CONFIRMED IN APPEAL BY THE CIT(A). 2. AT THE TIME OF HEARING AN ADJOURNMENT APPLICATION WAS MOVED ON BEHALF OF THE COUNSEL OF THE ASSESSEE . H OWEVER CONSIDERING THE RECORD AND AFTER HEARING THE LD. SR. DEPARTMENTAL REPRESENTATIVE THE ADJOURNMENT REQUEST WAS REJECTED HOLDING A DJOURNMENT REJECTED . APPEAL ALLOWED . S PEAKING ORDER TO FOLLOW . 3. T HE RECORD SHOWS THAT THE ASSESSEE IN THE YEAR UNDER CONSIDERATION AS PER THE PENALTY ORDER SOLD AGRICULTURAL LAND AT VILLAGE BADHALI KHERA DISTRICT BHILWARA AND CLAIMED THE CONSIDERATION AS EXEMPT UNDER SECTION 10(36) OF THE INCOME 2 TAX ACT CLAIMING THAT TH E LAND WAS SITUATED MORE THAN 8 K.M. FROM THE MUNICIPAL LIMIT. RELIANCE WAS PLACED UPON THE REPORT OF THE AREA PATWARI WHICH STATED THAT THE LAND WAS SITUATED APPROXIMATELY 8.7 KM FROM THE RAILWAY STATION. HOWEVER THE ASSESSING OFFICER RELYING UPON THE RE PORT OF THE TEHSILDAR BHILWARA WHO REPORTED THAT THE DISTANCE OF THE LAND SOLD WAS 7KM FROM THE RAILWAY STATION MADE THE ADDITION IN THE HANDS OF THE ASSESSEE AS CAPITAL GAIN. THE ISSUE TRAVELLED IN APPEAL BEFORE THE ITAT AND WAS REMANDED WHERE UPON RELYIN G UPON THE EVIDENCE OF TESHILDAR BHILWARA LETTER NO. 166, DT. 21/01/2015 THE DISTANCE OF LAND FROM THE MUNICIPAL LIMIT S WAS FIXED AS 3 K.M. AS A RESULT OF THIS PENALTY @100% WAS IMPOSED UPON THE TAX SOUGHT TO BE EVADED UPON THE ASSESSEE. T HE ORDER WAS CONF IRMED IN APPEAL B Y THE CIT(A) REJECTING THE DETAILED WRITTEN SUBMISSION RECORDED IN PARA 4.2 OF PAGES 2 TO 5 OF HIS ORDER. AGGRIEVED BY WHICH THE ASSESSEE IS IN APPEAL BEFORE THE ITAT . THE LD. SR. DEPARTMENTAL REPRESENTATIVE RELIES UPON THE IMPUGNED ORDER . 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. I FIND ON A PERUSAL OF THE SAID WRITTEN SUBMISSION EXTRACTED IN THE IMPUGNED ORDER THAT THE ASSESSEE CLAIMED THAT SHE WAS AN OLD ILLITERATE LADY AND HAD FILED HER RETURN AS ADV ISED AND EVEN ON THE DISTANCE S CONTRARY EVIDENCE OF LAND REVENUE AUTHORIT ES AVAILABLE ON RECORD WAS RELIED UPON IN DEFENSE OF HER BONAFIDE. IT WAS ALSO CLAIMED THAT SHE HAS COOPERATED AT ALL STAGES AND PAID TAXES. FOR READY REFERENCE THE SUBMISSION REITER ATED AT PA GE 4 OF THE IMPUGNED ORDER IS REPRODUCED HERE UNDER: REGARDING ON THE AFORESAID ISSUE TECHNICALLY THE ASSESSEE HER SELF WAS CONFUSED AN SPECIALLY NOT HAVING ANY TYPE OF KNOWLEDGE ABOUT SITUATION OF PERFECT LOCATION OF LAND WHICH SITUATED AT VILL - ARJIYA THE RURAL AREA AND IN GENERAL AND ROUTINE TO MARKETING OF TRANSACTION THE ASSESSEE HAS SHOWN THE SAME FILED HER RETURN UNDER THE PART OF HEAD EXEMPTED INCOME. THAT THE ASSESSEE IS A SENIOR CITIZEN AN ILLITERATE OLD LADY WHO HAVE NOT HAVING THE SPEC IFIC KNOWLEDGE ABOUT THE METER AND LAW AND SUBMITTED THE SAME IN HER RETURN TO SHOWING THE TOTAL TRANSACTION WHICH IS ALREADY ON THE PLACED OF THE RECORD. 3 4 .1 THUS IT IS CLEAR THAT ALL FACTS WERE AVAILABLE BEFORE THE TAX AUTHORIT IES AND THERE WAS NO CONCE ALMENT AND THE INACCURACIES IN RELATION TO THE DISTANCE IN THE PECULIAR FACTS OF THE PRESENT CASE CAN BE AC CEPTED AS A BONAFIDE MISTAKE. 4. 2 THE LD. SR. DEPARTMENTAL REPRESENTATIVE THOUGH HEAVILY RELIED UPON THE IMPUGNED ORDER HOWEVER COULD NOT REBUT THE F ACT THAT THE COMPETENT AUTHORITY ITSELF LIKE A TEHSILDAR IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE IS MEASURING DISTANCES FROM THE RAILWAY STATION AND NOT THE MUNICIPAL LIMITS. THUS THE MISTAKE BY AN ILLITERATE S ENIOR CITIZEN WHO BY VIRTUE OF HER GENDER MAY NOT HAVE HAD ANY NEED TO INTERACT HABITUALLY IN SALE AND PURCHASE OF LANDS HERSELF CAN BE WELL ACCEPTED. THUS HER BELIEF THAT THE ADVISE GIVEN TO HER BY EXPERTS AND HER TAX RETURN IS BEING FILED IN ACCORDANCE WITH LAW DESERVES TO BE ACCEPTED . T HE EVIDENCE RELIED UPON BY THE TAX AUTHORITIES MAY BE GOOD FOR SUPPORTING THE ADDITION IN THE QUANTUM PROCEEDING HOWEVER IT IS WELL SETTLED THAT QUANTUM PROCEEDING AND PENALTY PROCEEDING ARE SEPARATE AND DISTINCT. THE EXPLANATION OFFERED IN THE QUANTUM PRO CEEDING HAS TO BE SEPARATELY AND SPECIFICALLY ADDRESSED IN THE PENALTY PROCEEDING KEPING THE SPECIFIC REQUIREMENT OF THE PROVISIONS. ACCORDINGLY IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE I AM OF THE VIEW THAT THE ASSEESSES EXPLANATION THAT SH E REMAIN ED UNDER THE BONAFIDE BELIEF THAT HER TAX RETURN WAS FILED IN ACCORDANCE WITH LAW DESERVES TO BE ACCEPTED. B EING SATISFIED WITH THE EXPLANATION OFFERED PENALTY IS DIRECTED TO BE DELETED. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED ON 03/03/2017 IN THE OPEN COURT. (DIVA SINGH) JUDICIAL MEMBER 4 DATED: 03/03/2017 AG COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT