SMT . SEEMA MIRPURI, Nagpur V. ITO, WARD-1(3), Nagpur

ITA 390/NAG/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75929 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 23-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H M WANARE ITA NO; NAG AY
• Assessee Lawyers: S C THAKKAR; C J THAKKAR
• Keywords: Capital asset

Judgement Text

, ,) - ( , IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR, BE NCH, (E-COURT), MUMBAI . . , !' , #$% , $& '( BEFORE SHRI H L KARWA, PRESIDENT & SHRI RAJENDRA, A M ./ITA NO.390/NAG/2012 ( ) * / ASSESSMENT YEAR :2007-08) SMT. SEEMA MIRPURI, I/C CANAL ROAD, RAMDASPETH, NAGPUR-10 PAN : AEDPM 9515 K VS. ITO, WARD 1(3), NAGPUR ( +, /APPELLANT) ( -.+, / RESPONDENT) ./ITA NO.391/NAG/2012 ( ) * / ASSESSMENT YEAR :2007-08) SMT. GEETA MIRPURI, I/C CANAL ROAD, RAMDASPETH, NAGPUR-10 PAN : ABXPM 1918 C VS. ITO, WARD 1(3), NAGPUR ( +, /APPELLANT) ( -.+, / RESPONDENT) ./ITA NO.392/NAG/2012 ( ) * / ASSESSMENT YEAR :2007-08) SMT. KOKILA MIRPURI, I/C CANAL ROAD, RAMDASPETH, NAGPUR-10 PAN : ABXPM 1917 B VS. ITO, WARD 1(3), NAGPUR ( +, /APPELLANT) .. ( -.+, / RESPONDENT) ASSESSEE BY : SHRI C.J.THAKKAR & SHRI S.C.THAKKAR REVENUE BY : SHRI H M WANARE 2 ITA NO.390, 391 & 392/NAG/2012 AY:2007-08 DATE OF HEARING : 21.01.2014 DATE OF PRONOUNCEMENT : 21.01.2014 '$/ / O R D E R PER H L KARWA, PRESIDENT : THESE THREE APPEALS BY DIFFERENT ASSESSEES INVOLVIN G COMMON ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2. WE WILL DISCUSS THE FACTS IN THE CASE OF ASSESSE E SMT. SEEMA MIRPURI IN ITA NO.390/NAG/2012 AND THE OUTCOME OF THE SAME WILL BE APPLICABLE IN CASE OF TWO OTHER ASSESSEES I.E. SMT. GEETA MIRPURI & SMT. KOKILA MIR PURI IN ITA NOS. 391 & 392/NAG/2012 RESPECTIVELY, OWING TO THE IDENTICAL F ACTS EXCEPT THE AMOUNT OF PENALTY LEVIED U/S. 271(1)(C) OF THE I.T ACT, 1961. 3. SMT. SEEMA MIRPURI SOLD A PLOT OF LAND FOR CONSI DERATION OF RS.90,54,540/- AND CLAIMED THAT THE SAME A CAPITAL ASSET. ACCORDING T O THE ASSESSEE THE CAPITAL GAIN OF THIS TRANSACTION WAS NIL AFTER CLAIMING DEDUCTION U/S. 5 4EC. THE ASSESSING OFFICER DID NOT ACCEPT THE CLAIM OF THE ASSESSEE AND TREATED THE TR ANSACTION AS BUSINESS TRANSACTION AND ASSESSED THE INCOME UNDER THE HEAD BUSINESS IN COME. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) AND THE CIT(A) VIDE ORD ER DATED 07.03.2011 HAS HELD THAT THE TRANSACTIONS ENTERED INTO BY THE ASSESSEE WERE BUSINESS TRANSACTIONS BEING ADVENTURE IN NATURE OF TRADE. SUBSEQUENTLY, VIDE O RDER DATED 01.02.2012, THE ASSESSING OFFICER LEVIED PENALTY U/S. 271(1)(C) OF THE I.T. ACT, 1961 FOR FILING OF INACCURATE PARTICULARS OF INCOME. THE ASSESSING OF FICER OBSERVED IN THE ORDER THAT THE TRANSACTION RELATED TO CAPITAL ASSETS WAS NOT AN ER RONEOUS CLAIM BUT A WILLFUL CLAIM MADE INTENTIONALLY TO AVOID THE PAYMENT OF TAXES. FOR F URNISHING INACCURATE PARTICULARS OF INCOME, THE ASSESSING OFFICER LEVIED PENALTY OF RS. 22,51,000/- U/S. 271(1)(C) OF THE ACT. 4. ON APPEAL, THE CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER LEVYING THE PENALTY U/S. 271(1)(C) OF THE ACT. 3 ITA NO.390, 391 & 392/NAG/2012 AY:2007-08 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THIS BENC H OF THE TRIBUNAL IN QUANTUM APPEAL I.E. ITA NO.75/NAGPUR/2011 PREFERRED BY THE ASSESSE E, FOR A.Y. 2007-08, REVERSED THE ORDER OF THE CIT(A) HOLDING THAT THE LAND SOLD BY T HE ASSESSEE WAS NOT ON ACCOUNT OF ADVENTURE IN NATURE OF TRADE BUT ON ACCOUNT OF SALE OF CAPITAL ASSET AND, THEREFORE, CAPITAL GAIN HAS TO BE LEVIED. ACCORDINGLY, THE TRI BUNAL DIRECTED THE ASSESSING OFFICER TO TREAT THE SALE CONSIDERATION AS SALE CONSIDERATION ON ACCOUNT OF CAPITAL ASSET AND COMPUTE THE CAPITAL GAIN. 6. IT IS WELL SETTLED LAW THAT WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER, ON THE BASIS OF WHICH PENALTY FOR FURNISHING INACCURAT E PARTICULARS OF INCOME WAS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVY ING PENALTY U/S. 271(1)(C) OF THE ACT AND, THEREFORE, IN SUCH A CASE NO SUCH PENALTY CAN SURVIVE AND THE SAME IS LIABLE TO BE CANCELLED. WE, THEREFORE, CANCEL THE PENALTY OF RS .22,51,000/- LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). 7. IDENTICAL FACTS ARE INVOLVED IN THE CASE OF SMT. GEETA MIRPURI AND SMT. KOKILA MIRPURI AND, THEREFORE, FOR THE REASONS AS MENTIONE D ABOVE WHILE DECIDING THE APPEAL IN THE CASE OF SMT. SEEMA MIRPURI (ITA 390/NAG/2012), WE CANCEL THE PENALTY OF RS.15,00,000/- AND RS.23,50,000/- RESPECTIVELY. 8. IN THE RESULT, ALL THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE E-COURT ON THIS 21 ST DAY OF JANUARY, 2014. SD/- SD/- (RAJENDRA) (H L KARWA) ACCOUNTANT MEMBER PRESIDENT MUMBAI, DT : 21 ST JANUARY, 2014 SA 4 ITA NO.390, 391 & 392/NAG/2012 AY:2007-08 COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T, CONCERNED 4. THE CIT (A)-CONCERNED 5. THE DR, NAGPUR BENCH BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI