ITO, UDAIPUR V. M/s. Associated Minerals, UDAIPUR

ITA 500/JODH/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5301 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Keywords: Revised return
• Section: 143(3); 147; 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 500 / JODH /201 5 (ASST. YEAR : 200 9 - 1 0 ) TRILOK CHAND JAIN, 15/29,CHOPASNI HOUSING BOARD, JODHPUR. VS. ITO, WARD - 3(3), JODHPUR. PAN NO. ABDDJ 5436 B (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE . DEPARTMENT BY : S HRI S.L. MOURYA - DR DATE OF HEARING : 1 0 / 0 3 /201 6 . DATE OF PRONOUNCEMENT : 1 0 / 03 /201 6 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 2 , JODHPUR , DATED 09 /0 9 /201 5 . 2. THE SOLE GROUND OF APPEAL TAKEN BY THE ASSESSEE IN THIS APPEAL IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS. 1,14,820/ - UNDER SEC. 271(1)(C) OF THE ACT. 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING THE TO T AL INCOME AT RS. 1,93,830/ - . THE ASSESSING OFFICER FOUND THAT THE ASSESSEE SOLD A PLOT ON 16/05/2005 AT RS. 7 LAC AND DEPOSITED THE SAME IN CAPITAL GAINS ACCOUNT WHICH WAS NOT UTILIZED AS PER SEC. 54(2) OF THE ACT. ACCORDING TO THE ASSESSING OFFICER , AS PER 2 ITA NO. 500 / JODH /201 5 SEC. 54(2 ), THE ASSESSEE WAS REQUIRED TO DEPOSIT CAPITAL GAIN S TAX UNDER SEC. 45 OF THE ACT IN THE PREVIOUS YEAR , I N T H E P R E V I O U S Y E A R IN WHICH THE PERIOD OF THREE YEARS FROM THE DATE OF TRANSFER OF THE ORIGINAL ASSET EXPIRES . T HE ASSESSEE FAILED TO DO SO. THEREFORE, INCOME CHARGEABLE TO TAX ESCAPED ASSESSMENT . THE ASSESSING OFFICER ISSUED NOTICE UNDER SEC. 148 DATED 08/04/2011. IN COMPLIANCE TO WHICH , ASSESSEE FILED REVISED RETURN OF INCOME ON 14/06/2011 SHOWING TOTAL INCOME AT RS. 7,82,395/ - INCLUDI NG CAPITAL GAIN OF RS. 5,88,565/ - . THE ASSESSEE DEPOSITED TAX OF RS.1,48,936/ - ON REVISED INCOME. THE ASSESSMENT WAS COMPLETED UNDER SEC. 147/143(3) ON 18/10/2011 AT TOTAL INCOME OF 7,82,395/ - . THE ASSESSING OFFICER WAS OF THE OPINION THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME WITH REFERENCE TO ESCAPED INCOME ON LONG TERM CAPITAL GAIN S IN ORIGINAL RETURN. THEREFORE, THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS UNDER SEC. 271(1)(C) BY ISSUE OF NOTICE DATED 18/10/2011 . THEREAFTER , THE ASSESSING OFFICER LEVIED PENALTY UNDER SEC. 271(1)(C) AMOUNTING TO RS. 1,14,820/ - BEING 100% OF TAX SOUGHT TO BE EVADED. 4 . ON APPEAL, COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE FOR THE VERY SAME REASON FOR WHICH ASSESSING OFFICER HA D LEVIED PENALTY . 5. NONE APPEAR E D ON BEHALF OF THE ASSESSEE IN SPITE OF NOTICE OF HEARING WAS SENT TO THE ASSESSEE. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 6 . AFTER HEARING THE DEPARTMENTAL REPRESENTATIVE AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT IN THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE, THE ASSESSEE DID NOT DECLARE LONG TERM CAPITAL GAIN WHICH WAS CHARGEABLE TO TAX IN THE YEAR UN DER APPEAL AS THE ASSESSEE HAS NOT UTILIZED THE SALE CONSIDERATION OF THE PLOT WITHIN THREE YEARS FROM THE DATE OF SALE OF THE ORIGINAL ASSET AS PER THE REQUIREMENT 3 ITA NO. 500 / JODH /201 5 OF SEC. 54(2) OF THE ACT. THE ASSESSEE WAS SER V ED WITH NOTICE UNDER SEC. 148(2) FOR THE SA ME AND INCOMPLIANCE THEREOF , THE ASSESSEE FILED REVISED RETURN OF INCOME AND REVISED ITS INCOME BY INCLUDING CAPITAL GAINS OF RS. 5,88,565/ - AND ALSO DEPOSITED THE TAX ON THE REVISED INCOME , AMOUNTING TO RS. 1,48,936/ - . THE ASSESSMENT UNDER SEC. 147 READ WITH SEC. 143(3) WAS COMPLETED ON 18/10/201 1 AT THE REVISED INCOME SHOWN BY THE ASSESSEE IN ITS RETURN OF INCOME AT RS. 7,82,395/ - . THEREAFTER , ASSESSING OFFICER LEVIED PENALTY OF RS. 1,14,820/ - UNDER SEC. 271(1)(C) OF THE ACT ON THE GROUND THAT ASSESSEE FURNISHED IN ACCURATE PARTICULARS OF HIS INCOME , WHICH WAS CONFIRMED IN APPEAL BY THE COMMISSIONER OF INCOME TAX (APPEALS). WE FIND THAT THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL (251 ITR 09) HELD AS UNDER: - T HE ASSESSEE HAD ORIGINALLY FILED RETURNS SHOWING MEAGRE INCOME. WHEN, AFTER ACTION UNDER SEC. 132 OF THE INCOME TAX ACT, 1961, A NOTICE UNDER SEC. 148 WAS SERVED ON HIM, HE FILED REVISED RETURNS SHOWING HIGHER INCOME. EVENTUALLY, ASSESSMENT ORDERS WERE PASSED AND TH E RETURNS SUBMITTED REGULARISED UNDER SEC. 148. IN PENALTY PROCEEDINGS UNDER SEC. 271, THE ASSESSEE CLAIMED THAT HE HAD OFFERED ADDITIONAL INCOME TO BUY PEACE OF MIND AND AVOID LITIGATION. PENALTY ORD E RS WERE PASSED AND THE COMMISSIONER (APPEALS) CONFIRM ED THE ORDERS. BUT THE APPELLATE TRIBUNAL HELD THAT THE DEPARTMENT HAD NOT DISCHARGED ITS BURDEN OF PROVING CONCEALMENT AND HAD SIMPLY RESTED ITS CONCLUSION ON THE ACT OF VOLUNTARY SURRENDER DONE BY THE ASSESSEE IN GOOD FAITH, AND THAT PENALTY COULD BE LE VIED FOR CONCEALMENT. THE DEPARTMENT PREFERRED APPEALS TO THE SUPREME COURT. THE SUPREME COURT DISMISSED THE APPEALS HOLDING THAT NO INTERFERENCE WITH THE ORDER OF THE HIGH COURT WAS CALLED FOR. 7. IN THE INSTANT CASE ALSO , WE FIND THAT THE ASSESSEE HAS DISCLOSED THE CAPITAL GAIN S IN THE REVISED RETURN OF INCOME FILED BY HIM IN PURSUANCE TO THE NOTICE ISSUED UNDER SEC. 148 OF THE ACT AND PAID THE TAX ON THE REVISED INCOME . THEREFORE , THE ABOVE QUOTED DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF S URESH CHANDRA MITTAL (SUPRA) SQUARELY APPLIES TO THE CASE OF THE ASSESSEE. HENCE, RESPECTFULLY 4 ITA NO. 500 / JODH /201 5 FOLLOWING THE SAME, WE DELETE THE LEVY OF PENALTY OF RS. 1,14,820/ - AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS A L L O W E D . ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON THURSDAY , THE 1 0 TH DAY OF MARCH , 201 6 AT JODHPUR . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER D ATED : 1 0 TH MARCH , 201 6 . VR/ - COPY TO: 1. THE ASSESS E E. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R . 6. GUARD FILE. BY ORDER