Sh. Dinesh Dua, Delhi V. DCIT, CC-I, Chandigarh

ITA 503/CHANDI/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4430 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 20-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA
• Assessee Lawyers: S K BHASIN
• Keywords: Revised return
• Section: 54F; 153A; 54

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A, CHANDIGARH , !' # $ % &' , '( BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 503/CHD/2018 / ASSESSMENT YEAR : 2011-12 SH. DINESH DUA, A-103,NARANG COLONY, JANAKPURI WEST, DELHI-110058 THE DCIT, CENTRAL CIRCLE-1, CHANDIGARH ./PAN NO: AADPD0227D / APPELLANT /RESPONDENT ! /ASSESSEE BY : SHRI S.K.BHASIN, CA ' ! / REVENUE BY : SMT. CHANDERKANTA, SR.DR # $ % /DATE OF HEARING : 15.10.2018 &'() % / DATE OF PRONOUNCEMENT : 23.10. 2018 ')/ ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 4.8.2017 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, GURGAON [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS RAISED THE FOLLO WING GROUNDS OF APPEAL :- 1. THE ORDER OF LD. CIT(A) IS BAD IN LAW AND ON FACTS. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF THE LD. ASSESSING OFFICER IN LEVYING THE PENALTY OF RS. 8,55,355/- U/S 271(1)(C) ON ADDITIONAL INTEREST INCOME OF RS. 3,89,655/- ITA NO. 503/CHD/2018- SH. DINESH DUA, DELHI 2 AND LONG TERM CAPITAL GAIN OF RS. 33,55,054/- VOLUNTARILY DESCALED AT THE TIME OF FILING REVISED RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153A OF THE ACT. 3. IN THIS CASE THE IMPUGNED PENALTY WAS LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) ON ACCOUNT OF ADDITIONAL INTEREST INCOME AND LONG TERM CAPITAL GAINS VOLUNTA RILY DECLARED AT THE TIME OF FILING REVISED RETURN OF INCOME IN RESP ONSE TO NOTICE U/S 153A OF THE ACT. 4. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE H AS SUBMITTED THAT THE QUANTUM ADDITION ON THE ISSUE OF LONG TERM CAPITAL GAIN VOLUNTARY DECLARED HAS BEEN DEALT WITH BY THE COORDINATE BENC H OF THE TRIBUNAL IN GROUP CASES ALONGWITH RELEVANT ITA NO. 1476/CHD/201 7 AND THE TRIBUNAL VIDE PARAS 9 & 10 OF THE ORDER DATED 07.09.2018, HAS ALLOWED THE APPEAL OF THE ASSESSEE PARTLY. THE RELEVANT PART OF THE OR DER IS REPRODUCED AS UNDER:- 9. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES. IN THE CASE IN HAND, THE ASSESSMENT YEAR INVOLVED IS 2011-12. THE ASSESSMENT PROCEEDINGS IN RELATION TO THE ORIGINAL RETURN FILED BY THE ASSESS EE U/S 139(1) OF THE ACT STOOD ABATED ON THE DATE OF SEARC H. HENCE, IT WAS OPEN TO THE ASSESSING OFFICER TO LOOK INTO AND EXAMINE EACH AND EVERY ASPECT RELATING TO THE INCOME OF THE ASSESSEE IN THE ASSESSMENT PROCEEDI NGS CARRIED OUT U/S 153A OF THE ACT. ADMITTEDLY, NO INCRIMINATING MATERIAL WAS FOUND IN RELATION TO THE INCOME DECLARED BY THE ASSESSEE IN HIS RETURN OF I NCOME FILED U/S 153A OF THE ACT. THE RETURN FILED BY THE ASSESSEE U/S 153A DECLARING THE ADDITIONAL INCOME AT THE MO ST CAN BE SAID TO BE A REVISED RETURN OF INCOME AND TH E ASSESSING OFFICER WAS REQUIRED TO LOOK INTO EACH A ND EVERY ASPECT OF THE INCOME OF THE ASSESSEE INCLUDI NG THE EXEMPTIONS OR DEDUCTIONS AS AVAILABLE TO THE ASSES SEE UNDER THE RELEVANT PROVISIONS OF THE ACT. THE ASSES SMENT ITA NO. 503/CHD/2018- SH. DINESH DUA, DELHI 3 YEAR UNDER CONSIDERATION IS NOT A YEAR RELATING TO WHICH THE ASSESSMENT STOOD COMPLETED, RATHER IT WAS A YEA R IN RELATION TO WHICH THE PENDING ASSESSMENT, IF ANY, STOOD ABATED ON THE DATE OF SEARCH ACTION. IN VIEW OF TH IS, THE ASSESSEE IS LEGALLY ENTITLED TO CLAIM DEDUCTION AS AVAILABLE TO HIM UNDER THE RELEVANT PROVISIONS IN RELATION TO THE INCOME DECLARED IN THE RETURN FILED U/S 153A OF THE ACT. 10. THE ASSESSEE HAS CLAIMED DEDUCTION U/S 54 OF T HE INCOME-TAX ACT. HOWEVER, THE LOWER AUTHORITIES HAVE DENIED THE DEDUCTION ON THE GROUND THAT THE INVESTM ENT IN THE NEW RESIDENTIAL HOUSE WAS MADE PRIOR TO THE DATE OF SALE OF THE ASSET IN QUESTION. AT THIS STAGE, TH E LD. COUNSEL FOR THE ASSESSEE HAS MADE A STATEMENT AT BA R THAT THE ASSESSEE HAD MADE THE PAYMENT IN INSTALLM ENTS TO A BUILDER FOR HOUSE TO BE CONSTRUCTED / UNDER CONSTRUCTION. THE LD. COUNSEL HAS STATED THAT THE ASSESSEE WILL BE SATISFIED IF HE MAY BE ALLOWED DED UCTION U/S 54 / 54F OF THE ACT IN RESPECT OF INVESTMENT / PAYMENTS MADE AFTER THE DATE OF SALE OF THE ASSET. WE ACCORDINGLY DIRECT THE ASSESSING OFFICER TO ALLOW T HE ASSESSEE THE DEDUCTIONS AS MAY BE AVAILABLE TO TH E ASSESSEE UNDER THE PROVISIONS OF SECTIONS 54 / 54F IN RESPECT OF INVESTMENT MADE / PAYMENTS MADE TO THE BUILDER / DEVELOPER AFTER THE DATE OF SALE OF ASSET IN QUESTION. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS PARTLY ALLOWED. 5. IN VIEW OF THE ABOVE, IT CANNOT BE SAID TO BE A CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. IT HAS BEEN TIME AND AGAIN HELD THAT EACH AND EVERY DISALL OWANCE DOES NOT AUTOMATICALLY ATTRACT PENALTY U/S 271(1)(C) OF THE ACT. MOREOVER, THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 54 / 54F OF THE ACT IN RESPECT OF INVESTMENT / PAYMENT MADE AFTER THE DATE OF SALE OF ASSET HAS BEEN ACCEPTED BY THE TRIBUNAL. IN VIEW OF THIS, IT IS NO T A FIT CASE OF LEVY OF PENALTY ON THIS ISSUE. ITA NO. 503/CHD/2018- SH. DINESH DUA, DELHI 4 SO FAR AS THE PENALTY LEVIED ON ACCOUNT OF ADDITION AL INTEREST INCOME DECLARED BY THE ASSESSEE U/S 153A OF THE ACT , IT WAS NOT ON ACCOUNT OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH OR ANY ADDITIONAL INCOME DETECTED BY THE REVENUE AUTHORITI ES DURING SEARCH ACTION. THIS INCOME HAS BEEN VOLUNTARILY RETURNED B Y THE ASSESSEE IN HIS RETURN OF INCOME U/S 153A OF THE ACT. IN VIEW O F THIS, IT CANNOT BE SAID TO BE CASE OF FURNISHING OF INACCURATE PARTICU LARS OF INCOME OR CONCEALMENT OF INCOME ON THE PART OF THE ASSESSEE. IN VIEW OF THIS, THE IMPUGNED LEVIED BY THE LOWER AUTHORITIES IS NOT SUSTAINABLE IN THE EYES OF LAW AND THE SAME IS ORDERED TO THE DELETED. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 23.10.2018. SD/- SD/- ( # $ % &' / ANNAPURNA GUPTA) '( / ACCOUNTANT MEMBER ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 23. 10. 2018 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR