ITO 31(2)(2), MUMBAI V. KAVITA SUDHIR MANE, MUMBAI

ITA 5078/MUM/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0699 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MILIND PATIL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Retrospective amendment; Question of law; Cost of acquisition; Fair market value; Valuation report
• Section: 271(1)(c); 143(3); 50C; 133(6); 148; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI PAWAN SINGH , JM ITA NO. 5078 /MUM/ 2016 (ASSESSMENT YEAR: 2008 - 09) ITO - 31(2)(2) 103, C - 13, PRAYTAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400 051 VS. SMT. KAVITA SUDHIR MANE 1001, ANMOL ENCLAVE, EXCEL ESTATE, OPP. PATEL AUTO, S. V. ROAD, GOREGAON (W), MUMBAI - 400 062 PAN/GIR NO. ADFPM 3616 C ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI MILIND PATIL RESPONDENT BY : SHRI DEEPAK TRALSHAWALA DATE OF HEARING : 04.09.2018 DATE OF PRONOUNCEMENT : 22.11 .2018 O R D E R PER SHAMIM YAHYA, A. M.: THIS A PPEAL BY THE REVENUE I S DIRECTED AGAINST THE O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 42, MUMBAI (LD.CIT(A) FOR SHORT) DATED 17.05.2016 . AND PERTAINS TO THE A SSESSMENT YEAR (A.Y.) 2008 - 09. 2. T HE GROUNDS OF APPEAL READ AS UNDER : 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING PENALTY U/S 271(L)(C) OF THE I. T. ACT, 1961 AND ALLOWING RE LIEF TO THE ASSESSEE OF RS. 33,79,110/ - ON THE GROUND THAT THE ASSESSEE HAD FOLLOWED THE VALUATION GIVEN BY A REGISTERED VALUER AND NO PARTICULARS WERE CONCEALED. 2. WHETHER ON THE FA CTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) HAS NOR ERRED IN NOT APPRECIATING THE FACT THAT THE - ASSESSEE HAD INFLATED THE COST OF ACQUISITION AND IT IS NOT A CASE WHERE THE PROVISIONS OF SECTION 50C IS APPLIED TO ESTIMATE THE SALE CONSIDERATION. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) HAS NOR ERRED IN NOT CONSIDERING THAT THE COST OF ACQUISITION WAS NOT TO BE 2 ITA NO.5078/MUM/2016 SMT. KAVITA SUDHIR MANE BASED ON ANY VALUATION BUT IS THE COST OF ACQUIRING THE PROPERTY WHICH WAS IN FATED ON THE BASIS OF AN INCORRECT VALUATION REPORT AND WHICH WAS RETRACTED WHEN THE DEPARTMENT VALUATION OFFICER FILED THE REPORT. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) HAS NOR ERRED IN NOT APPRECIATING TH E FACT THAT THE TECHNICAL ISSUES RAISED IN THE APPEAL DOES NOT ARISE ON THE FACTS OF THE CASE AS THIS CASE IS ENTIRELY ON DIFFERENT SET OF FACTS. 5. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) HAS NOR ERRED IN RELYI NG ON THE DECISION OF RELIANCE PETROPRODUCTS LTD, (322 ITR 158) WHICH IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE.' 3. B RIEF FACTS OF THE CASE ARE THAT T HE ASSESSEE IS AN INDIVIDUAL WHO HAD FILED HER RETURN OF INCOME FOR A.Y. 2008 - 09 ON 28.07.2008 DECLARING A TOTAL INCOME OF RS.8,46,420/ - . THE ASSESSEE HAS ALSO CLAIMED LONG TERM CAPITAL LOSS OF RS. 1,40,60,074/ - . THE ASSESSEE HAD ALSO DECLARED INCOME UNDER THE HEAD SALARY, HOUSE PROPERTY & OTHER SOURCES. THE ASSESSEE HAD CLAIMED LONG TERM CAPITAL LO SS MOSTLY IN RESPECT OF SALE OF TWO PROPERTIES BUILT ON PLOT NO. 79 (CRYSTAL) & 80 (DHANWATAY), WORLI HILL ESTATE SCHEME NO. 58 HOUSE, WORLI, MUMBAI - 400018. THE ASSESSEE HAD CLAIMED THAT BOTH THE ABOVE PROPERTIES WERE JOINT FAMILY PROPERTIES AND THE ASSESS EE'S SHARE IS ONLY 2.60% IN PLOT NO. 79 AND 2.08% IN PLOT NO. 80, THE ASSESSEE HAD FILED HER RETURN OF INCOME AFTER OBTAINING A VALUATION REPORT IN RESPECT OF THE SAID PROPERTIES FROM M/S R.R. NIGAM, REGISTERED VALUERS. THE ASSESSEE HAD CLAIMED A HIGHER FA IR MARKET VALUE AS ON 01.04.1981 ON THE BASIS OF THE VALUATION REPORT. SUBSEQUENTLY THE ASSESSING OFFICER RECEIVED INFORMATION FROM THE ITO - WARD - 3(L), PUNE THAT THEY HAD REFERRED THE SAME PROPERTIES FOR VALUATION TO THE DEPARTMENTAL VALUATION OFFICER IN TH E CASE OF ANOTHER CO - OWNER SMT, MANJUSHREE JAYANT JADHAV AND THE DVO HAD VALUED THE PROPERTY AS ON 01.04. 1981 AT RS. 98,85,713/ - AND RS. 75,51,575/ - FOR CRYSTAL & DHANWATAY RESPECTIVELY WHICH WAS FAR LESS THAN THE VALUE GIVEN BY M/S R. R, NIGAM AT RS.5,09 ,2 5,000 / - AND RS. 4 ,13,59,840/ - RESPECTIVELY, (SUBSEQUENTLY REVISED BY THE DVO TO RS.2,04,01,360 / - & 3 ITA NO.5078/MUM/2016 SMT. KAVITA SUDHIR MANE RS. 1,54,93,692/ - ). THE ASSESSING OFFICER ACCORDINGLY REOPENED THE ASSESSMENT PROCEEDINGS AND ISSUED A NOTICE U/S 148 TO THE ASSESSEE. IN RESPONSE TO THE NOTIC E THE ASSESSEE FILED A RETURN ON 25.05.2013 WHEREIN THE ASSESSEE DECLARED THE LTCG ON THE BOTH PLOTS ON THE BASIS OF THE DVO'S WORKING. THEREFORE AS AGAINST A LTCL OF RS.1,40,60,074/ - , THE ASSESSEE DECLARED LTCG OF RS.23,43,367/ - . THE ASSESSING OFFICER PAS SED AN ORDER U/S 143(3) R.W.S. 147 ON 26.02.2014 ACCEPTING THE NEW WORKING OF LTCG OFFERED BY THE ASSESSEE. HOWEVER THE AO HELD THAT THIS REVISED COMPUTATION OF LTCG WAS OFFERED BY THE ASSESSEE ONLY AS A RESULT OF INITIATION OF RE - ASSESSMENT PROCEEDINGS AN D IT WAS NOT VOLUNTARY. THE AO THEREFORE INITIATED PENALTY PROCEEDINGS U/S 271(L)(C) OF THE ACT. AS THE ASSESSEE DID NOT FILE ANY APPEAL AGAINST THE QUANTUM ASSESSMENT ORDER, THE ASSESSING OFFICER COMMENCED THE PENALTY PROCEEDINGS AND IMPOSED A PENALTY OF RS.33,79, 110 / - U/S 271(L)(C) OF THE ACT. THE AO HELD THAT THE DIFFERENCE BETWEEN RS.( - ) 1,40,60,074/ - & RS. 23,43,367/ - AMOUNTING TO RS.1,64,03,441/ - REPRESENTS THE AMOUNT FOR WHICH THE ASSESSEE HAD CONCEALED HER INCOME BY FURNISHING INACCURATE PARTICULARS OF INCOME. 4. A GAINST THE ABOVE ORDER , THE ASSESSEE APPEALED BEFORE THE L D. CIT(A). 5. THE LD. CIT(A) NOTED THE SUBMISSION OF THE ASSESSEE THAT T HE ASSESSEE HAS ARGUED THAT SHE HAD NOT CONCEALED ANY PARTICULARS OF HER INCOME AND SHE HAS ALSO NOT FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IT IS DECLARED THAT IN THE ORIGINAL INCOME TAX RETURN THE ASSESSEE HAD GIVEN THE COMPLETE DETAILS OF THE S AFE OF THE PROPERTY AND HAD ALSO GIVEN THE DETAILS OF INDEXED COST OF ACQUISITION BASED ON THE VALUATION GIVEN BY A REGISTERED VALUER. THE ASSESSEE ADMITS THAT SHE HAD RECEIVED THE REASONS RECORDED BY THE AO FOR 4 ITA NO.5078/MUM/2016 SMT. KAVITA SUDHIR MANE ISSUING NOTICE U/S 148 ON 17.04.2013 AND SHE HAD FILED A RETURN OF INCOME ON 24.05.2013 IN WHICH SHE HAD ACCEPTED THE VALUATION OF THE DVO IN THE CASE OF MRS. MANJUSHREE JAYANT JADHAV, A CO - OWNER OF THE PROPERTIES. THE ASSESSEE HAS CLAIMED THAT SHE HAS CO - OPERATED IN THE RE - ASSESSMENT PROCEEDINGS AN D SHE HAS ALSO PAID THE TAXES DUE IN ORDER TO BUY MENTAL PEACE. IT WAS CLAIMED THAT THERE IS NO ADDITIONAL SOURCE OF INCOME OR THE NATURE OF THE INCOME DECLARED HAS ALSO NOT BEEN VARIED BUT THE COST OF INDEXATION HAS BEEN REALIGNED TO REFLECT THE DVO'S VAL UATION OF FMV AS ON 01.04.1981. IT WAS CLAIMED THAT THE ASSESSEE HAD NO INKLING THAT THE FMV CAN BE ANY DIFFERENT AS ON 01.04.1981, THE ASSESSEE HAS ALSO RELIED UPON SEVERAL CASE LAWS TO ARGUE THAT THE PENALTY U/S 271(1 )(C) OF THE ACT WAS NOT MAINTAINABLE IN HER CASE. 6. U PON CONSIDERATION OF THE ASSESSEE S SUBMISSION , THE LD. CIT(A) ELABORATELY DEALT WITH THE ISSUE AND DELETED THE PENALTY LEVIED. THE ORDER OF THE LD. CIT(A) IN THIS REGARD MAY BE GAINFULLY REFERRED WHICH READS AS UNDER : THE FACTS OF THE CASE ARE DULY CONSIDERED. IT IS NOTED THAT IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME - TAX VS. DHARIYA CONSTRUCTION CO [2010] 328 TTR 515 (SC), THE SUPREME COURT HAD HELD AS UNDER: - 'THE OPINION OF THE DVO PER SE IS NOT AN INFORMATION FOR THE PURPOSES OF REOPENING ASSESSMENT UNDER SECTION 147 OF THE INCOME - TAX ACT, 1961. THE ASSESSING OFFICER HAS TO APPLY HIS MIND TO THE INFORMATION, IF ANY, COLLECTED AND MUST FORM A BELIEF THEREON. IN THE CIRCUMSTANCES, THERE IS NO MERIT IN THE CIVIL APPEAL. THE DEPAR TMENT WAS NOT ENTITLED TO REOPEN THE ASSESSMENT.' IT IS ALSO NOTED THAT PRIOR TO 01.07.2012 THERE WAS NO ENABLING SECTION TO MAKE A REFERENCE U/S 55A OF THE ACT TO THE DVO TO ASCERTAIN THE FMV AS ON 01.04.1981. AS PER SECTION 55A WHICH WAS ON STATUTE FOR T HE A.Y, UNDER CONSIDERATION THE AO COULD HAVE MADE A REFERENCE U/S 55A(A) ONLY I/ - THE AO WAS OF THE OPINION THAT THE VALUE OF THE ASSET AS CLAIMED BY THE ASSESSEE IN ACCORDANCE WITH THE ESTIMATE MADE BY A REGISTERED VALUER IS LESS THAN ITS FAIR MARKET VALU E AND NOT WHERE IT IS MORE THAN THE FAIR MARKET VALUE. IT IS ARGUED THAT THE AMENDMENT BROUGHT ABOUT IN SECTION 55A BY THE FINANCE ACT, 2012 IS ONLY WITH EFFECT FROM 01.07.2012 AND IS PROSPECTIVE IN ITS APPLICATION. (AS PER THIS AMENDMENT THE AO IS NOW ENT ITLED TO REFER THE VALUATION OF A CAPITAL ASSET WHERE 5 ITA NO.5078/MUM/2016 SMT. KAVITA SUDHIR MANE HE IS OF THE OPINION THAT THE VALUE CLAIMED BY THE ASSESSEE IS AT VARIANCE WITH ITS FAIR MARKET VALUE). IN THE CASE TITLED AS ! CIT VS. DAULAL MOHTA HUF' IN INCOME TAX APPEAL NO. 1031 OF 2008 DATED 22/09 /2008, THE JURISDICTIONAL HIGH CONN OF BOMBAY HAS HELD THAT THE REFERENCE MADE BY THE ASSESSING OFFICER TO THE DVO U/S 55A IS BAD IN LAW. SUBSEQUENTLY IN THE CASE OF COMMISSIONER OF INCOME - TAX - 13 V. PUJA PRINTS [2014] 360 ITR 697 (BOMBAY) THE HIGH COURT AN SWERED THE FOLLOWING QUESTIONS OF LAW, WHICH ARE RELEVANT TO THE ISSUE AT HAND ALSO: (A) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ITAT WAS RIGHT IN HOLDING THAT THE REFERENCE MADE BY THE AO TO THE VALUATION OFFICER PER SE IS BAD IN , LAW? FURTHER, WHETHER THE ITAT WAS JUSTIFIED IN OBSERVING THAT THE REFERENCE TO THE DVO U/S. 55A OF THE IT ACT 1961 IS TO BE MADE WHEN THE VALUE OF THE PROPERTY DISCLOSED BY THE ASSESSEE IS LESS THAN THE FAIR VALUE AND NOT VICE VERSA THEREBY IG NORING THE PROVISIONS OF SECTION 55A(B)(II) OF THE ACT 1961 AND PARAGRAPH 26 TO 28 OF CIRCULAR NO.96 DATED 25.11.1972 OF THE CBDT? (B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ITAT WAS RIGHT IN DIRECTING THE AO TO ACCEPT TH E VALUATION GIVEN BY THE RESPONDENT AS THE FAIR MARKETVALUE ON THE BASIS OF THE REGISTERED VALUER'S REPORT AND WORKOUT CAPITAL GAIN?' THE HIGH COURT HAS HELD AS UNDER: 'REGARDING QUESTIONS (A) AND (B) . 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE IMPUGNED ORDER DATED 18 FEBRUARY, 2011 ALLOWING THE RESPONDENT - ASSESSEE'S APPEAL HOLDING THAT NO REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER CAN BE MADE UNDER SECTION 55A OF THE ACT, ONLY FOLLOWS THE DECISION OF THIS COURT IN THE MATTER O F DAULAL MOHTA HUF (SUPRA). THE REVENUE HAS NOT BEEN ABLE TO POINT OUT HOW THE AFORESAID DECISION IS INAPPLICABLE TO THE PRESENT FACTS NOR HAS THE REVENUE POINTED OUT THAT THE DECISION IN DAULAL MOHTA HUF (SUPRA) HAS NOT BEEN ACCEPTED BY THE REVENUE. ON TH E AFORESAID GROUND ALONE, THIS APPEAL NEED NOT BE ENTERTAINED. HOWEVER, AS SUBMISSIONS WERE MADE ON MERITS, WE HAVE INDEPENDENTLY EXAMINED THE SAME. 7. WE FIND THAT SECTION 55A(A) OF THE ACT VERY CLEARLY AT THE RELEVANT TIME PROVIDED THAT A REFERENCE COULD BE MADE TO THE DEPARTMENTAL VALUATION OFFICER ONLY WHEN THE VALUE ADOPTED BY THE ASSESSEE WAS LESS THAN THE FAIR MARKET VALUE. IN THE PRESENT CASE, IT IS AN UNDISPUTED POSITION THAT THE VALUE ADOPTED BY THE RESPONDENT - ASSESSEE OF THE PROPERTY AT . RS.35.9 9 LAKHS WAS MUCH MORE THAN THE FAIR MARKET VALUE OF RS.6.68 LAKHS EVEN AS DETERMINED BY THE DEPARTMENTAL VALUATION OFFICER. IN FACT, THE ASSESSING OFFICER REFERRED THE ISSUE OF VALUATION TO THE DEPARTMENTAL VALUATION OFFICER ONLY BECAUSE IN HIS VIEW THE , VALUATION OF THE PROPERTY AS ON 1981 AS MADE BY THE RESPONDENT - ASSESSEE WAS HIGHER THAN THE FAIR MARKET VALUE. IN THE AFORESAID CIRCUMSTANCES, THE INVOCATION OF SECTION 55A(A) OF THE ACT IS NOT JUSTIFIED. 8. THE CONTENTION OF THE REVENUE THAT IN VIEW OF THE AMENDMENT TO SECTION 55A(A) OF THE ACT IN 2012 BY WHICH THE WORDS 'IS LESS THEN THE FAIR MARKET 6 ITA NO.5078/MUM/2016 SMT. KAVITA SUDHIR MANE VALUE' IS SUBSTITUTED BY THE WORDS ' 'IS AT VARIANCE WITH ITS FAIR MARKET VALUE' IS CLARIFACTORY AND SHOULD BE GIVEN RETROSPECTIVE EFFECT. THIS SUBMISSION I S IN FACE OF THE FACT THAT THE 2012 AMENDMENT WAS MADE EFFECTIVE ONLY FROM I JULY 2012. THE PARLIAMENT HAS NOT GIVEN RETROSPECTIVE EFFECT TO THE AMENDMENT. THEREFORE, THE LAW TO BE APPLIED IN THE PRESENT CASE IS SECTION 55A(A) OF THE ACT AS EXISTING DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR 2006 - 07. AT THE RELEVANT TIME, VERY CLEARLY REFERENCE COULD BE MADE TO DEPARTMENTAL VALUATION OFFICER ONLY IF THE VALUE DECLARED BY THE ASSESSEE IS IN THE OPINION OF ASSESSING OFFICER LESS THAN ITS FAIR MARKET VA LUE. 9. THE CONTENTION OF THE REVENUE THAT THE REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER ' BY THE ASSESSING OFFICER IS SUSTAINABLE IN VIEW OF SECTION 55A(A) (II) OF THE ACT IS NOT ACCEPTABLE. THIS IS FOR THE REASON THAT SECTION 55A(B)OFTHE ACT VERY C LEARLY STATES THAT IT WOULD APPLY IN ANY OTHER CASE I.E. A CASE NOT COVERED BY SECTION 55A(A) OF THE ACT. IN THIS CASE, IT IS AN UNDISPUTABLE POSITION THAT THE ISSUE IS COVERED BY SECTION 55A(A) OF THE ACT. THEREFORE, RESORT CANNOT BE HAD TO THE RESIDUARY CLAUSE PROVIDED IN SECTION 55A(B)(II) OF THE ACT. IN VIEW OF THE ABOVE, THE CBDT CIRCULAR DATED 25 NOVEMBER 1972 CAN HAVE NO APPLICATION IN THE FACE OF THE CLEAR POSITION IN LAW. THIS IS SO AS THE UNDERSTANDING OF THE STATUTORY PROVISIONS BY THE REVENUE AS FOUND IN CIRCULAR ISSUED BY (HE CBDT IS NOT BINDING UPON THE ASSESSEE AND IT IS OPEN TO AN ASSESSEE TO CONTEND TO THE CONTRARY. 10. THE CONTENTION OF THE REVENUE THAT THE ASSESSING OFFICER IS ENTITLED TO REFER THE ISSUE OF VALUATION OF THE PROPERTY TO THE DEPARTMENTAL VALUATION OFFICER IN EXERCISE OF ITS POWER UNDER SECTIONS 131, 133(6) AND 142(2) OF THE ACT IS ENTIRELY BASED UPON THE DECISION OF THE GUWAHATI HIGH COURT IN SMT. AMIYA BALA PAUL (SUPRA). HOWEVER, THE APEX COURT IN SMT. AMIYA BALA PAUL (SUPRA ) HAS REVERSED THE DECISION OF THE GUWAHATI HIGH COURT AND HELD THAT IF THE POWER TO REFER ANY DISPUTE WITH REGARD TO THE VALUATION OF THE PROPERTY WAS ALREADY AVAILABLE UNDER SECTIONS 131(1), 136(6) AND 142(2) OF THE ACT, THERE WAS NO NEED TO SPECIFICALLY EMPOWER THE ASSESSING OFFICER TO DO SO IN CIRCUMSTANCES SPECIFIED UNDER SECTION 55A OF THE ACT. IT FURTHER HELD THAT WHEN A SPECIFIC PROVISION UNDER WHICH THE REFERENCE CAN BE MADE TO THE DEPARTMENTAL VALUATION OFFICER IS AVAILABLE, THERE IS NO OCCASION F OR THE ASSESSING OFFICER TO INVOKE THE GENERAL POWERS OF ENQUIRY. IN VIEW OF THE ABOVE AND PARTICULARLY IN VIEW OF CLEAR PROVISIONS OF LAW AS EXISTING DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR 2006 - 07, WE ARE OF THE VIEW THAT QUESTIONS (A) AND (B) DO N OT RAISE ANY SUBSTANTIAL QUESTION OF LAW '. SIMILAR DECISIONS HAVE BEEN GIVEN IN THE FOLLOWING CASE LAWS ALSO: (I) COMMISSIONER OF INCOME - TAX, KOLKATA - X, KOLKATA V. SMT. MINA DEOGUN [2015] 375 ITR 586 (CALCUTTA), (II) COMMISSIONER OF INCOME - TAX V. MANJULABEN M. UNADKAT [2015] 229 TAXMAN 531 (GUJARAT) (III) SMT. SARLA N. SAKRANEY V. INCOME - TAX OFFICER, 12(3)(3), MUMBAI [2011] 130 ITD 167 (MUMBAI) 7 ITA NO.5078/MUM/2016 SMT. KAVITA SUDHIR MANE (IV) PRADEEPG. VORAV. INCOME TAX OFFICER .}/[2015] 154 ITD 118 (MUMBAI - TRIB.) IT IS ALSO NOTED THAT THERE IS NO FINDING IN THE CASE THAT ANY DETAILS SUPPLIED BY THE ASSESSEE WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. IT IS A SIMPLE MATTER WHERE THE CLAIM OF THE ASSESSEE HAS BEEN REJECTED BASED ON A DIFFERENT SET OF VALUATION REPOR T; THE CASE OF THE ASSESSEE IS THUS COVERED BY THE DECISION OF THE SUPREME COURT IN CIT VS. RELIANCE PETROPRODUCTS LTD. (322 ITR 158). FURTHER IN THE CASE OF DILIP N. SHROFF VS. JOINT COMMISSIONER OF INCOME - TAX, SPECIAL RANGE, MUMBAI [2007] 291 ITR 519 (SC ) IT WAS HELD BY THE SUPREME COURT AS UNDER: - 'A DUTY MAY BE ENJOINED ON THE ASSESSEE TO MAKE A CORRECT DISCLOSURE OF INCOME BUT IF SUCH DISCLOSURE IS BASED ON THE OPINION OF AN EXPERT, WHO IS OTHERWISE ALSO A REGISTERED VALUER HAVING BEEN APPOINTED IN TER MS OF A STATUTORY SCHEME, O NLY BECA USE HIS OPINION IS NOT ACCEPTED OR SOME OTHER EXPERT GIVES ANOTHER OPINION, THE SAME BY ITSELF MAY NOT BE SUFFICIENT FOR ARRIVING AT A CONCLUSION THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS '. THOUGH THE DECISI ON IN THE CASE OF DILIP N SHROFF (SUPRA) WAS DISSENTED IN THE CASE OF DHARMENDRA TEXTILE PROCESSORS [2008] 306 ITR 277 (SC), THE DISSENT WAS ONLY ON MENS REA. IN DHARMENDRA TEXTILE PROCESSORS CASE IT WAS HELD THAT THE PENALTY PROCEEDINGS UNDER THE INCOME T AX ACT ARE CIVIL PROCEEDINGS AND MENS REA IS NOT ESSENTIAL. IN VIEW OF THE ABOVE DISCUSSION IT IS HELD THAT THE ASSESSEE HAD FOLLOWED THE VALUATION GIVEN BY A REGISTERED VALUER AND NO PARTICULARS WERE CONCEALED. IN VIEW OF THE SAME THE PENALTY U/S 271(L)(C) OF THE ACT WAS NOT LEVIABLE. THE PENALTY IS DELETED AND ALL THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED. IN THE SUM, THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. A GAINST THE ABOVE ORDER , THE R EVENUE IS IN APPEAL BEFORE US. 8. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS . WE FIND THAT IN THIS CASE IN THE ORIGINAL RETURN THE ASSESSEE HAD DECLARED LONG TERM CAPITAL GAIN WHEREIN THE FAIR MARKET VALUE AS ON 01.04.1981 WAS BASED UPON THE VALUATION REPORT OF A REGISTERED VALUER. SUBSEQUEN TLY , THE ASSESSMENT WAS REOPEN ED ON THE BASIS OF THE REPORT OF THE DVO FOR A LESSER VALUE AS ON 01.04.1981. IN THE REASSESSMENT PROCEEDING, THE ASSESSEE OFFERED LONG TERM CAPITAL GAIN BASED ON VALUATION OF DVO. THE ASSESSMENT WAS ACCORDINGLY DONE BY THE A. O. HOWEVER, PENALTY WAS LEVIED ON THE GROUND THAT THE ASSESSEE HAS CONCEALED HER INCOME BY FURNISHING INACCURATE PARTICULARS OF INCOME ORIGINALLY . FIRSTLY, WE NOTE THAT IN THE ORIGINAL RETURN THE ASSESSEE HAS DISCLOSED THE LONG TERM CAPITAL GAIN ON THE BAS IS OF THE 8 ITA NO.5078/MUM/2016 SMT. KAVITA SUDHIR MANE VALUATION OF THE REGISTERED VALUER. IF THE DEPARTMENT VALUER DOES NOT AGREE WITH THE REGISTERED VALUER , BY NO STRETCH OF IMAGINATION IT CAN BE SAID THAT THE ASSESSEE HAS INDULGED IN CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. I T IS NOT THE CASE THAT ANY ACTION HAS BEEN TAKEN AGAINST THE REGISTERED VALUER FOR ANY WRONG DOING . FURTHERMORE, IN THE REASSESSMENT PROCEEDING PURSUANT TO WHICH THIS PENALTY HAS BEEN LEVIED THE ASSESSEE DULY OFFERED THE LONG TERM CAPITAL GAIN AS PER THE VALUATION DONE BY THE DVO AND THE A.O. HAS ACCEPTED THE RETURN OF INCOME. WHEN THERE IS NO DIFFERENCE BETWEEN T H E INCOME RETURNED AND THE INCOME ASSESSED, IN OUR CONSIDERED OPINION, THERE CANNOT BE ANY GROUND FOR LEVYING OF PENALTY U/S. 271(1)(C) OF THE AC T. AS IN SUCH A SITUATION, THE MACHINERY PROVISION OF SECTION 271(1)(C) FAILS INASMUCH THE PENALTY IS LEVIED WITH REFERENCE TO THE INCOME SOUGHT TO BE CONCEALED. ONCE THE RETURNED INCOME AND THE INCOME ASSESSED ARE THE SAME, THE MACHINERY PROVISION OF SECT ION 271(1)(C) FAILS. HENCE, IN OUR CONSIDERED OPINION, THERE IS NO CASE OF SUSTAINING LEVY OF PENALTY IN THIS CASE. FURTHERMORE, WE NOTE THAT THE LD. CIT(A) HAS DECIDED THE ISSUE ON THE BASIS OF THE HONBLE HIGH COURT DECISION THAT REFERENCE TO THE DVO ITS ELF WAS NOT JUSTIFIED. FURTHERMORE, WE NOTE THAT THE LD. CIT(A) HAS RELIED UPON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF RELIANCE PETROPRODUCTS LTD. (SUPRA). HE HAS ALSO NOTED THAT THERE IS NO FINDING IN THIS CASE THAT ANY DETAIL SUPPLIED BY T HE ASSESSEE WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. HE HAS ALSO HELD THAT THE ASSESSEE HAS FOLLOWED THE VALUATION GIVEN BY THE REGISTERED VALUER AND NO PARTICULARS WERE CONCEALED. IN OUR CONSIDERED OPINION, IN THE BACKGROUND OF THE ABOVE DISCUSSI ON IN THE PRECEDING PARAGRAPHS AND THE REASONING GIVEN BY THE LD. CIT(A), IN OUR CONSIDERED OPINION, THE 9 ITA NO.5078/MUM/2016 SMT. KAVITA SUDHIR MANE PENALTY LEVIED IN THIS CASE HAS RIGHTLY BEEN DELETED BY THE LD. CIT(A). ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD. CIT(A). 9. IN THE RESULT, THIS AP PEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 2 . 1 1 . 2 0 1 8 S D / - S D / - ( PAWAN SINGH ) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 2 2 . 1 1 . 2 0 1 8 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI