Ushaben Chauhan, Vadodara V. The ITO, Ward-3(1)(1), Vadodara

ITA 501/AHD/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6651 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-09-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 13-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIPUL KHANDHER
• Keywords: Bonafide belief; Condonation of delay
• Section: 271(1)(c); 144; 250

Judgement Text

ITA No. 501/Ahd/2023 Ushaben Chauhan Vs. ITO Assessment Years: 2009-10 Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD \ BEFORE Ms. SUCHITRA R. KAMBLE, JUDICIAL MEMBER ITA No. 501/Ahd/2023 Assessment Year: 2009-10 Ushaben Chauhan, Laxmipura, Padra Road, Padra Vadodara, Gujarat PAN : APMPC 4691 J Vs Income Tax Officer, Ward-3(1)(1), Vadodara अपीलाथ / (Appellant) यथ / (Respondent) Assessee by : Shri Vipul Khandher, AR Revenue by : Ms. Saumya Pandey Jain, Sr DR सुनवाई की तारीख/D at e of H ear i ng : 04 /09 /2023 घोषणा की तारीख /D at e of Pr o nou nc em ent : 1 1/10 /202 3 O R D E R This appeal filed by the assessee is directed against the order of the Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as "CIT(A)" for short] dated 19.12.2022 passed under Section 250 of the Income Tax Act, 1961 [hereinafter referred to as "the Act" for short] for the Assessment Year (AY) 2009-10. 2. The effective grounds raised by the assessee in her appeal are as follows:- “1. The learned CIT(A) erred in law and on facts in confirming the penalty order u/s 271(1)(c) of IT Act, 1961 which is requested to be quashed. 2. The learned CIT(A) erred in imposing the penalty of Rs.2,81,034/- u/s 271 (1)(c) of the IT Act, 1961 which is requested to be quashed.” 3. The assessee did not file the return of income for A.Y. 2009-10 originally and the assessment under Section 144 r.w.s. 147 of the Income Tax Act, 1961 was finalized on 17.01.2014 determining the total income of Rs. 26,64,227/-. The Assessing Officer observed that the assessee, her mother, brother and two sisters (total five persons) ITA No. 501/Ahd/2023 Ushaben Chauhan Vs. ITO Assessment Years: 2009-10 Page 2 of 4 have jointly sold the land for the consideration of Rs. 1,33,00,000/-. The assessee confirmed before the Stamp Duty Authority that she received Rs. 26,60,000/- as sales consideration through cheques. However, the assessee did not file the return of income and not paid the capital gain tax on the sale of immovable property. The Assessing Officer estimated the long term capital gain at Rs. 26,60,000/- as well as the bank interest of Rs. 4,227/- which was not offered to tax. Penalty proceedings u/s 271(1)(c) were initiated for both the additions. In the meanwhile, the assessee preferred appeal before the CIT(A) in quantum proceedings, but the same was dismissed by the CIT(A) vide order dated 16.07.2015. During the course of penalty proceedings, the assessee filed its submissions which was considered and thereafter the Assessing Officer imposed the penalty of Rs. 2,81,034/- u/s 271(1)(c) of the Income Tax Act, 1961. 4. Being aggrieved by the Penalty order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. The Ld. AR submitted that the CIT(A) in quantum proceedings directed the Assessing Officer to calculate the long term capital gain after considering the share of the assessee in total sale consideration and accordingly, the assessee agreed for the same. The assessee also paid capital gain tax as applicable. The assessee has not paid any taxes earlier as she was under bonafide belief that no tax is payable on sale of “agriculture land” since the assessee being uneducated and is not aware of the provisions of income tax which resulted into not paying the taxes. The Ld. AR submitted that an addition made during the course of assessment proceedings by itself cannot be enough to initiate, leave aside conclude, penalty proceedings under Section 271(1)(c) of the Act. The Ld. AR submitted that there is no wilful concealment of income or furnishing of inaccurate particulars of income. The Ld. AR relied upon the decision of the Hon’ble Gujarat High Court in case of Pr. CIT vs. Sun on Peak Hotel (P.) Ltd. (2018) 95 taxmann.com 320. 6. The Ld. DR relied upon the assessment order, penalty order and the order of the CIT(A). ITA No. 501/Ahd/2023 Ushaben Chauhan Vs. ITO Assessment Years: 2009-10 Page 3 of 4 7. Heard both the parties and perused all the relevant material available on record. There is a delay of 117 days in filing the present appeal for which the assessee has given the reasons by filing condonation of delay application. It appears that the delay is genuine and hence, the same is condoned. It is pertinent to note that the assessee has not filed return of income and it appears that the assessee being not aware about the tax on sale consideration of the land is genuine. At no point of time assessee concealed the particulars of income or furnished inaccurate particulars of income as the assessee after the order of the CIT(A) has paid the taxes on capital gain. This fact is not disputed by the Ld. DR. The decision of Hon’ble Gujarat High Court in case of Sun on Peak Hotel (P.) Ltd. (supra) is applicable in the present case as the assessee herein has a genuine case of not aware of tax payment. Thus, the penalty imposed u/s 271(1)(c) of the Act is not justifiable. 8. In result, appeal of the assessee is allowed. Order pronounced in the open Court on this 11 th day of October, 2023. Sd/- (SUCHITRA KAMBLE) Judicial Member Ahmedabad, the 11 th day of October, 2023 Bt* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order TRUE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad