Jayaben Narendrakumar Patel, Vadodara V. Dy.Commissioner of Income Tax,Circle-2(1), Baroda

ITA 389/AHD/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5980 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 03-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 18-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHIV SEVA K
• Assessee Lawyers: M K PATEL
• Keywords: Capital asset; Bonafide mistake

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JM, AND SHRI MANISH BORAD, AM ./ITA.NO.389/AHD/2016 ( / ASSTT YEAR :2011-12) JAYABEN NARENDRA KUMAR PATEL, 302, HARSH COMPLEX OLD PADRA ROAD, VADODARA. PAN: ADBPP3882H VS. DCIT, CIRCLE-2(1), BARODA (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI M.K. PATEL, A.R / RESPONDENT BY: SHRI SHIV SEVAK, SR. D.R / DATE OF HEARING 03-05-2017 /DATE OF PRONOUNCEMENT 05-05-2017 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-V, VADODARA DA TED 26.11.2015 ARISING OUT OF THE ORDER U/S. 271(1)(C) OF THE ACT DATED 24.09.2014 FRAMED BY DCIT, CIRCLE-2(1), BARODA FOR ASSESSMENT YEAR 2011- 12. SOLE GRIEVANCE OF THE ASSESSEE IS AGAINST THE ORDER OF COMMISSIONER O F INCOME TAX (APPEALS) CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OF FICER U/S. 271(1)(C) AT RS. 20,97,266/-. ITA.NO.389/AHD/2016 ASSESSMENT YEARS 2011-12 - 2 2. BRIEFLY STATED FACTS HAS CULLED OUT FROM THE REC ORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL EARNING INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES. CASE WAS SELECTED FOR SCRUTINY UNDER CASS ON THE BASIS OF INFORMATION ABOUT SALE OF IMMOVABLE PROPERTY. DURIN G THE ASSESSMENT PROCEEDINGS IT WAS REVEALED THAT ASSESSEE HAS NOT O FFERED LONG TERM CAPITAL GAINS FROM SALE OF LAND AT JASPUR AND SEVASI AT RS . 15,93,518/- & RS. 51,93,753/- RESPECTIVELY TOTALING TO RS. 67,87,271/ -. INCOME WAS ASSESSED AT RS. 78,55,301/-. ASSESSEE COULD NOT SUCCEED IN APP EAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS) AND THE ADDITION WAS CONFIR MED. 3. SUBSEQUENTLY PENALTY PROCEEDINGS U/S. 271(1)(C) WERE INITIATED AND PENALTY WAS IMPOSED PENALTY AT RS. 20,97,266/- AGAI NST THE PENALTY ORDER U/S. 271(1)(C) OF THE ACT ASSESSEE PREFERRED APPEAL BEFO RE THE COMMISSIONER OF INCOME TAX (APPEALS) BUT FAILED TO SUCCEED. 4. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE OUTSET LEARNED COUNSEL FOR THE ASSESSEE A PPRAISED THE BENCH THAT SIMILAR ISSUE OF IMPOSING PENALTY U/S. 271(1)(C) O F THE ACT FOR NOT OFFERING TAX ON LONG TERM CAPITAL GAIN CAME UP BEFORE THE CO ORDINATE BENCH IN THE CASE OF ASSESSEES HUSBAND MR. NARENDRA KUMAR M. PA TEL IN ITA NO. 716/AHD/2016 DATED 27.04.17 AND HONBLE TRIBUNAL HA S DISMISSED THE ASSESSEES APPEAL AND CONFIRMED THE PENALTY IMPOSED U/S. 271(1)(C). AS THE FACTS ARE SIMILAR ASSESSEE HAS A POOR CASE TO CONTE ST AGAINST THE IMPOSITION OF PENALTY U/S. 271(1)(C). 6. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESENT ATIVE SUPPORTED THE ORDER OF LOWER AUTHORITIES. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. SOLE GRIEVANCE OF THE ASSESSEE IS AGAIN ST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMING THE PENALTY IMPOSED BY ITA.NO.389/AHD/2016 ASSESSMENT YEARS 2011-12 - 3 THE LEARNED ASSESSING OFFICER U/S. 271(1)(C) OF THE ACT AT RS. 20,97,266/-. WE OBSERVE THAT THE IMPUGNED PENALTY WAS LEVIED FOR NOT DISCLOSING LONG TERM CAPITAL GAIN FROM SALE OF LAND AT JASPUR AND S EVASI AT RS. 15,93,518/- & 51,93,753/- , TOTALING RS. 67,87,271/-. IN QUANTUM APPEAL ASSESSEE LOST BEFORE COMMISSIONER OF INCOME TAX(APPEALS). WE FURT HER NOTICE THAT ASSESSEE HAS NO PLAUSIBLE REASON TO REBUT THE FINDI NGS OF THE LOWER AUTHORITIES. THE FACTS AND CIRCUMSTANCES OF THE CASE CLEARLY SHO WS THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME AND HAS EVADED TAX PAYABLE ON LONG TERM CAPITAL GAIN FROM SALE OF IMMOVABLE PROPERTY. 8. WE FURTHER OBSERVE THAT LEARNED COUNSEL DURING T HE COURSE OF HEARING REFERRED TO THE DECISION OF COORDINATE BENCH IN ITA NO. 716/AHD/2016 DATED 27.04.17 WHEREIN THE ISSUE RELATING TO THE PENALTY U/S. 271(1)(C) IMPOSED IN THE CASE OF ASSESSEES HUSBAND FOR ASSESSMENT YEAR 2011-12 CAME UP. PENALTY WAS IMPOSED FOR NOT DISCLOSING LONG TERM CAPITAL GA IN FROM SALE OF LAND AT JASPUR & SEVAS. COORDINATE BENCH DISMISSED THE APP EAL OF ASSESSEE AND CONFIRMED THE PENALTY U/S. 271(1)(C) OF THE ACT BY OBSERVING AS FOLLOWS:- 6. WE HAVE HEARD RIVAL SUBMISSIONS. CASE FILE PERUSED. LEARNED COUNSE L REPRESENTING ASSESSEE REITERATES HIS STAND ADOPTED BEFORE THE L OWER AUTHORITIES THAT IT WAS A BONAFIDE ERROR SINCE THE LAND IN QUESTION WAS BOTH AGRICULTURAL AND NON AGRICULTURAL AND IMPUGNED SALE CONSIDERATION HAD NOT BEEN RECEIVED IN THE RELEVANT PREVIOUS YEAR. HE THEN QUOTES HON'BLE APEX COURT'S DECISION IN PRICE WATERHOUSE COOPERS VS. CIT IN CIVIL APPEAL NO. 6924/2012 TO TERM THE ASSESSEE'S ABOVE ACT AND CONDUCT AS A CASE OF SIL LY MISTAKE LIABLE TO BE CONDONED. LEARNED DEPARTMENTAL REPRESENTATIVE STRONGL Y SUPPORTS THE IMPUGNED PENALTY. WE PROCEED TO EXAMINE FACTS OF THE CASE IN LIGH T OF ABOVE ARGUMENTS. THERE IS NO DISPUTE THAT ASSESSEE'S LAND IN QUESTION SOLD WAS BOTH AGRICULTURAL AND NON AGRICULTURAL WHEREAS HE HAD CONVERTED THE SAME IN LATTER CATEGO RY. THERE IS FURTHER NO QUARREL THAT THE ASSESSEE HAD CLEARLY DEMARCATED THE NECESSARY DI MENSIONS OF THE LAND SOLD IN THE TWO CATEGORIES. AND ALSO THAT HE THEREAFTER DID NOT DISCLOSE THE NON AGRIC ULTURAL LANDS CONSIDERATION FOR THE PURPOSE OF COMPUTING CAPITAL GAINS IN ORIG INAL RETURN OF INCOME. THE SAME POSITION CONTINUES EVEN AFTER ASSESSING OFFICER' S SPECIFIC QUERY REGARDING OMISSION OF TAXABLE INCOME IN NOTICE DATED 08.10.2013 (SUPRA). THE ASSESSEE RATHER WENT STEP FURTHER IN CLAIMING ALL OF HIS LAND MEASURI NG 11534 SQ.MTR. TO BE AGRICULTURAL NOT FORMING A CAPITAL ASSET IN SPITE OF THE FACT OF HAVING EXECUTED SALE DEED SPECIFYING THE SAME AS NON AGRICULTURAL. THERE IS FURTHER NO EVIDENCE THAT HE DECLARED THE ITA.NO.389/AHD/2016 ASSESSMENT YEARS 2011-12 - 4 CAPITAL GAINS IN QUESTION IN THE YEAR OF RECEIVING SALE CONSIDERAT ION; IF ANY. IT THEREFORE EMERGES THAT ASSESSEE'S ABOVE ATTEMPTS WERE NEITHER BONAFIDE MISTAKES NOR SI LLY ONES SO AS TO BE CONDONED. WE THUS CONCLUDE THAT THE LEARNED CIT(A) HAS RIGHTLY CON FIRMED THE IMPUGNED PENALTY IN ABOVE NARRATED FACTS OF THE CASE. 7. THIS ASSESSEE'S APPEAL IS DISMISSED. 9 . IN VIEW OF THE ABOVE DECISION OF THE COORDINATE BEN CH ADJUDICATING SIMILAR ISSUE IN THE CASE OF ASSESSEES HUSBAND MR. NARENDRA KUMAR M. PATEL AND ALSO OUR EXAMINATION OF FACTS IN THE ASSESSEES CASE WHEREIN THERE IS A CLEAR CONCEALMENT OF PARTICULARS OF INCOME WITH TH E INTENTION TO EVADE TAX BY NOT OFFERING TAX ON LONG TERM CAPITAL GAIN FROM SAL E OF LAND. WE ARE THEREFORE OF THE VIEW THAT THE LEARNED ASSESSING OFFICER HAS RIGHTLY IMPOSED THE PENALTY OF RS. 20,97,266/- U/S. 271(1)(C) OF THE ACT. WE F IND NO REASON TO INTERFERE WITH THE ORDER OF LEARNED COMMISSIONER OF INCOME TA X (APPEALS) AND UPHOLD THE SAME. 11. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT ON 5 TH MAY, 2017 AT AHMEDABAD. SD/- SD/- (SHRI RAJPAL YADAV) JUDICIAL MEMBER (SHRI MANISH BOARD) ACCOUNTANT MEMBER