Raj Kumar Gupta, Kanpur V. Asstt.Commissioner of Income Tax , Central Circle-II, Kanpur

ITA 448/LKW/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4388 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 28-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay; Bonafide mistake
• Section: 27; 148

Judgement Text

I.T.A. NO.448/LKW/2017 ASSESSMENT YEAR:2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.448/LKW/2017 ASSESSMENT YEAR:2012-13 SHRI RAJ KUMAR GUPTA, 7/93A, TILAK NAGAR, KANPUR. PAN:AATPG 7572 L VS. A.C.I.T., CENTRAL CIRCLE-II, KANPUR. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A)-IV, KANPUR DATED 12/01/2007 PERTAINING TO AS SESSMENT YEAR 2012- 2013. THE ASSESSEE HAS TAKEN VARIOUS GROUNDS OF AP PEAL WHICH INCLUDE LEGAL GROUNDS AS WELL AS GROUNDS ON MERITS. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT HE W ILL NOT BE PRESSING THE APPEAL ON LEGAL ISSUE AND RATHER HE WILL BE ARGUING ONLY ON THE MERITS OF THE CASE. LEARNED A. R. FIRST OF ALL INVITED OUR ATTEN TION TO THE FACT THAT THERE HAS BEEN A DELAY OF 103 DAYS IN FILING THE APPEAL A ND THE DELAY HAS OCCURRED BECAUSE OF THE MISTAKE COMMITTED BY SHRI SUNIL KUMA R MISHRA WHO WAS WORKING AS ONE OF THE OFFICE STAFFS OF SHRI RAJ KUM AR GUPTA, THE INCOME TAX PRACTITIONER WHO WAS THE COUNSEL OF THE ASSESSEE. LEARNED A. R. SUBMITTED APPELLANT BY SHRI P. K. KAPOOR, C. A. RESPONDENT BY S HRI C. K. SINGH, D. R. DATE OF HEARING 24/10/2018 DATE OF PRONOUNCEMENT 31 / 10 /201 8 I.T.A. NO.448/LKW/2017 ASSESSMENT YEAR:2012-13 2 THAT SHRI RAJ KUMAR GUPTA HANDED OVER THE DOCUMENTS TO SHRI SUNIL KUMAR MISHRA FOR DELIVERING IN THE OFFICE OF THE ARGUING COUNSEL SHRI P. K. KAPOOR, C. A. LEARNED A. R. SUBMITTED THAT IN THE AFFIDAVI T, DULY SWORN IN AND FILED BY SHRI SUNIL KUMAR MISHRA, HE HAS MENTIONED THAT H ANDING OVER OF THE APPEAL PAPERS TO THE ARGUING COUNSEL SKIPPED OUT OF HIS MIND AND IT CAME TO HIS NOTICE ONLY AFTER A FEW DAYS AND THEREAFTER HE IMMEDIATELY CONTACTED THE ARGUING COUNSEL WHO IMMEDIATELY FILED THE APPEAL. LEARNED A. R. SUBMITTED THAT SINCE THE DELAY HAD OCCURRED FOR NO FAULT OF T HE ASSESSEE, THEREFORE, IN THE INTEREST OF SUBSTANTIAL JUSTICE THE DELAY IN FI LING THE APPEAL MAY BE CONDONED AND THE ISSUE BE HEARD ON MERITS. 3. LEARNED D. R. HAD NO OBJECTION TO CONDONATION OF DELAY AND THEREFORE, KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, THE DELAY WAS CONDONED AND LEARNED A. R. WAS ASKED TO ARGUED ON M ERITS. 4. LEARNED A. R. SUBMITTED THAT THE ASSESSEE HAD DE CLARED A CAPITAL GAIN ON THE SALE OF SHARES, THE CONSIDERATION OF WHICH W AS RS.12,50,000/-. HOWEVER, DUE TO A TYPOGRAPHICAL MISTAKE, THE FIGURE WAS TYPED AS RS.1,25,000/- AND ACCORDINGLY THE CAPITAL GAIN WAS WRONGLY CALCULATED AND WHICH WAS RECTIFIED WHEN THE MATTER WAS BROUGHT TO THE NOTICE OF THE ASSESSEE AND TAXES WERE PAID ACCORDINGLY. IT WAS S UBMITTED THAT THE MISTAKE WAS A TYPOGRAPHICAL MISTAKE. IT WAS FURTHE R SUBMITTED THAT THE RETURN OF INCOME OF THE ASSESSEE WAS FOR MORE THAN RS. 5 CRORE AND THEREFORE, THE ASSESSEE WOULD NOT HAVE CONCEALED TH E SMALL AMOUNT OF CAPITAL GAIN. RELIANCE WAS PLACED ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT [2012] 348 ITR 306 (SC). FURTHER RELIANCE WAS PLACED ON AN OR DER OF LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF PANKAJ KUMAR GUPTA VS INCOME TAX OFFICER IN I.T.A. NO.486/LKW/2016. I.T.A. NO.448/LKW/2017 ASSESSMENT YEAR:2012-13 3 5. LEARNED D. R., ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAD DECLARED LONG TERM CAPITAL LOSS ON SALE OF SHAR ES TAKING THE SALE CONSIDERATION AT RS.1,25,000/- INSTEAD OF RS.12,50, 000/-. THE MISTAKE COMMITTED BY THE ASSESSEE IN COMPUTATION OF CAPITAL GAIN BY TAKING THE SALE CONSIDERATION AT RS.1,25,000/- IN PLACE OF RS.12,50 ,000/- SEEMS TO BE A TYPOGRAPHICAL MISTAKE AND DOES NOT SEEM TO BE INTEN DED MISTAKE AS THE IMPACT OF TAX ON THE ALLEGED CONCEALMENT IS QUITE I NSIGNIFICANT SPECIFICALLY KEEPING IN VIEW THE FACT THAT ASSESSEE HAD FILED RE TURN OF INCOME DECLARING TOTAL INCOME TO THE TUNE OF RS.5,12,57,800/-. WE F URTHER FIND THAT WHEN THE ISSUE WAS BROUGHT TO THE NOTICE OF THE ASSESSING OF FICER, THE ASSESSEE IMMEDIATELY ACCEPTED THE MISTAKE AND DUE TAXES WERE PAID. THE MISTAKE IS AN INADVERTENT MISTAKE IN COMPUTATION OF INCOME. H ON'BLE SUPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT [2012] 348 ITR 306 (SC) HAS DELETED THE SIMILAR PENALTY BY HOLDING THE MISTAKE TO BE BONAFIDE AND INADVERTENT ERROR. WE FURTHER FIND THAT LUCKNO W BENCH OF THE TRIBUNAL IN THE CASE OF PANKAJ KUMAR GUPTA VS INCOME TAX OF FICER IN I.T.A. NO.486/LKW/2016 HAS ALSO DELETED THE SIMILAR PENALT Y BY HOLDING AS UNDER: 9. WE HAVE PERUSED THE CASE RECORD AND CONSIDERED THE JUDICIAL PRONOUNCEMENTS PLACED BEFORE US. AT THE VERY OUTSE T, WE OBSERVE THAT AS APPEARING ON RECORD, IN THE RETURN FILED BY THE ASSESSEE THE TAX ON SALE OF IMMOVEABLE PROPERTY WAS NOT PAID OR ENTERED INTO. HOWEVER, WHEN NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED , ASSESSEE HIMSELF ATTENDED THE PROCEEDINGS AND THEREAFTER PAID THE EN TIRE TAX ON THE SAME DATE WHEN THE ASSESSMENT ORDER WAS FINALIZED. THIS ELEMENT OF BEHAVIOUR ON THE PART OF THE ASSESSEE SHOWS THAT WH EN HE HAD FILED THE RETURN, THERE WAS SOME OMISSION ON THE PART OF THE ASSESSEE TO INCLUDE THE TAX ON THE SALE OF PROPERTY. HOWEVER, WHEN HE RECEIVED NOTICE UNDER SECTION 148 OF THE ACT, HE WAS VERY EAGER TO KNOW WHAT MISTAKE HAS BEEN COMMITTED BY HIM AND, THEREFORE, HE HIMSEL F ATTENDED THE HEARING BEFORE THE ASSESSING OFFICER AND ON COMING TO KNOW ABOUT THE I.T.A. NO.448/LKW/2017 ASSESSMENT YEAR:2012-13 4 AMOUNT OF TAX PAYABLE, HAS IMMEDIATELY PAID TAX ON THE SAME DATE. HE HAS NOT EVEN CHALLENGED THE ASSESSMENT ORDER AND HA S ACCEPTED THE ASSESSMENT AS PASSED BY THE ASSESSING OFFICER AND P AID DUE TAX. THEREFORE, THERE IS NO LOSS TO THE REVENUE. THE AS SESSING OFFICER AS WELL AS THE LD. CIT(A) WERE OF THE OPINION THAT IF THE NOTICE UNDER SECTION 148 OF THE ACT WAS NOT ISSUED, THEN ASSESSE E WOULD HAVE GOT AWAY WITH THE TAX EVASION AND, THEREFORE, PENALTY W AS LEVIED. THE SPIRIT OF SECTION 271(1)(C) OF THE ACT SAYS CONCEA LMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. N OW THE JUDICIAL PRONOUNCEMENTS ARE ABSOLUTELY CLEAR THAT IF IN THE RETURN OF INCOME CERTAIN MISTAKE IS THERE, WHICH IS BONA-FIDE AND TH ERE IS ALSO NO LOSS TO THE REVENUE, THEN IN THE ABSENCE OF ANY MATERIAL ON RECORD, WE CANNOT COME TO THE CONCLUSION THAT ASSESSEE HAS DELIBERATE LY CONCEALED THE INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF I NCOME. IN THE INSTANT CASE, NOTHING IS ON RECORD TO SHOW THAT THE RE WAS ANY MALAFIDE INTENTION ON THE PART OF THE ASSESSEE TO CONCEAL TH E INCOME OR FURNISH INACCURATE PARTICULARS OF INCOME AND THERE WAS AN O MISSION WHILE FILING THE RETURN OF INCOME WHICH WAS RECTIFIED THROUGH CH ALLAN ON THE VERY DATE OF PASSING THE ASSESSMENT ORDER. BUT THE ENTI RE EXERCISE CANNOT BE BROUGHT TO THE AMBIT OF PENALTY UNDER SECTION 27 1(1)(C) OF THE ACT. WE ARE, THEREFORE, OF THE CONSIDERED VIEW THAT THIS PENALTY SHOULD BE CANCELLED AND WE ORDER CANCELLATION OF PENALTY. 6. THE FACTS IN THE PRESENT CASE SUGGEST THAT THE M ISTAKE COMMITTED BY ASSESSEE WAS AN INADVERTENT BONAFIDE MISTAKE FOR WH ICH NO PENALTY COULD BE IMPOSED. THEREFORE, FOLLOWING THE ABOVE JUDICIAL P RECEDENT, WE DELETE THE PENALTY SUSTAINED BY LEARNED CIT(A). 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 31/10/2018) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:31/10/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR