Appeal details
Counselvise Citation
[2014] 140 COUNSELVISE.COM (IT) 74353 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 3 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
19-03-2014
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
B
Next Hearing Date
19-03-2014
Assessment Year
2007-2008
Appeal Filed On
21-11-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI) BEFORE SHRI U. B. S. BEDI, JUDICIAL MEMBER AND SHRI J. S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 5168/DEL/2011 (ASSESSMENT YEAR 2007-08) SUDHIR KUKRETI, VS. ITO, WARD I, 104/28, DEHRADUN ROAD, RISHIKESH RISHIKESH PAN/GIR NO.:ADCPK2201N I.T.A. NO. 5169/DEL/2011 & 836/DEL/2012 (ASSESSMENT YEAR 2007-08, 2008-09) DEEP KUKRETI, VS. ITO, WARD-I, 104/28, DEHRADUN ROAD, RISHIKESH RISHIKESH PAN/GIR NO.: ADCPK2203Q (APPELLANTS) (RESPONDENTS) ASSESSEES BY : SHRI O P SAPRA, ADVOCATE DEPARTMENT BY: SHRI GAGAN SOOD, SR. DR ORDER PER U B S BEDI, JUDICIAL MEMBER: THESE THREE APPEALS OF TWO DIFFERENT ASSESSEES COM PRISE ONE APPEAL OF SHRI SUDHIR KUKRETI AGAINST THE ORDER DATED 08.0 8.2011 OF CIT(A)-I, DEHRADUN FOR THE ASSESSMENT YEAR 2007-08 AND TWO AP PEALS OF SHRI DEEP KUKRETI AGAINST THE ORDERS OF CIT(A)-I, DEHRADUN DA TED 08.08.2011 FOR THE I.T.A. NOS.5168, 5169/DEL/2011 I.T.A. NO.836/DEL/2012 2 ASSESSMENT YEAR 2007-08 AND DATED 17.10.2011 FOR TH E ASSESSMENT YEAR 2008-09. 2. SINCE THESE APPEALS INVOLVE IDENTICAL FACTS AND THE SAME ISSUE, THEREFORE, THE SAME ARE BEING DISPOSED OF BY A SING LE ORDER FOR THE SAKE OF CONVENIENCE. 3. FIRST, WE DISCUSS THE FACTS AND ISSUE INVOLVED I N THE CASE OF SUDHIR KUNRETI IN I.T.A. NO. 5168/DEL/2011 FOR THE ASSESSM ENT YEAR 2007-08. ASSESSMENT IN THIS CASE WAS MADE ON 26.08.2009 WHIL E THE APPEAL WAS PREFERRED ON 09.04.2010. THE ASSESSEE WAS A CO-OWN ER OF AN ANCESTRAL PROPERTY SITUATED AT NIRANJANPUR AT DEHRAUDN. THE LAND WAS SOLD FOR TOTAL CONSIDERATION OF RS.7,36,07,624/- OUT OF WHICH HIS SHARE CAME TO RS.61,33,968/-. WHILE THE FULL VALUE OF CONSIDERAT ION WAS DETERMINED AS PER THE CIRCLE RATE PRESCRIBED BY THE REGISTRATION AUTH ORITY FOR STAMP DUTY PURPOSES, THE FAIR MARKET VALUE AS ON 01.04.1981 (F OR THE PURPOSES OF DETERMINATION OF THE COST OF ACQUISITION) WAS TAKEN AS RS.2,70,000/- PER BIGHA. THE A.O. FOUND OUT THAT THE PRESCRIBED CIRC LE RATES FOR AGRICULTURAL LAND AS ON 01.04.1981 IN THE AREA WERE RANGING FROM RS.7,000/- TO RS.8,000/- PER BIGHA. ON BEING CONFRONTED WITH THI S FACT, THE ASSESSEE AGREED TO ADOPTION OF RS.8,000/- PER BIGHA AS THE F .M.V. AND DEEMED COST OF ACQUISITION AS ON 01.04.1981. THIS RESULTED IN ADD ITION OF RS.27,53,554/- IN THE QUANTUM OF THE LONG TERM CAPITAL GAINS. THE A SSESSEE DID NOT PREFER AN APPEAL AGAINST THE ASSESSMENT. SUBSEQUENTLY, PENAL TY U/S 271(1)(C) OF THE I. T. ACT, 1961 WAS IMPOSED BY THE A.O. WITH REFERENCE TO THE IMPUGNED ADDITION ON 19.03.2010. AT THIS STAGE, THE ASSESSE E PREFERRED AN APPEAL AGAINST THE ASSESSMENT AS WELL AS THE PENALTY. ACC ORDING TO HIM, HE HAD AGREED TO ADDITION IN THE ASSESSMENT WITH THE CONDI TION THAT PENALTY FOR I.T.A. NOS.5168, 5169/DEL/2011 I.T.A. NO.836/DEL/2012 3 CONCEALMENT WOULD NOT BE IMPOSED ON HIM AND, SINCE THE A.O. DID NOT GO BY THE CONDITION AND IMPOSED THE PENALTY, HE WAS AGGRI EVED AGAINST THE ASSESSMENT ORDER AS WELL AS THE PENALTY ORDER. THIS ACCORDING TO HIM, CONSTITUTED A VALID GROUND FOR THE DELAY IN PREFERR ING THE APPEAL. THE ONLY POINT FOR DETERMINATION IN THE APPEAL IS WHETHER TH E A.O. WAS CORRECT IN SUBSTITUTING THE FAIR MARKET VALUE OF THE LAND AS O N 01.04.1981 BY RS.8,000/- PER BIGHA AS AGAINST RS.2,70,000/- ADOPTED BY HIM A ND IN MAKING THE CONSEQUENTIAL ADDITION TO THE RETURNED INCOME. 4. LD. CIT(A) HAS DISCUSSED THE ISSUE IN PARA 1.1 A ND 1.2 AND HAS CONCLUDED, AS PER PARA 1.3 OF HIS ORDER, TO DISMISS THE APPEAL OF THE ASSESSEE. RELEVANT PARAGRAPHS 1.1 TO 1.3 ARE REPRODUCED AS UN DER: 1.1 IT IS UNDERSTANDABLE THAT THE ASSESSEE AGREED TO THE PROPOSED ADDITION IN ASSESSMENT WITH THE UNDERSTANDING OR UN DER THE IMPRESSION THAT HE WOULD NOT BE SUBJECTED TO PENALT Y FOR CONCEALMENT. ACCORDINGLY, IT IS LIKELY THAT HE DID NOT PREFER AP PEAL AGAINST THE ASSESSMENT BUT, WHEN THE PENALTY WAS IMPOSED ON HIM , HE MIGHT HAVE FELT AGGRIEVED. IT IS NOTED THAT HE FACT OF THE AG REED ADDITION WAS MENTIONED IN THE ASSESSMENT ORDER AND YET PENALTY F OR CONCEALMENT WAS INITIATED SIMULTANEOUSLY (THE FACT OF INITIATIO N OF PENALTY BEING DULY MENTIONED IN THE ASSESSMENT ORDER ITSELF). HE NCE, IF THE UNDERSTANDING WAS THAT IT WAS NOT A FIT CASE FOR IM POSITION OF PENALTY, THE A.O. WOULD NOT HAVE RECORDED HIS SATISFACTION O THERWISE AND INITIATED THE PENALTY. SINCE THAT HAPPENED, THE ASS ESSEE HAD A REASON TO BE AGGRIEVED AT THAT STAGE ITSELF AND NEED NOT H AVE WAITED TILL THE PENALTY WAS ACTUALLY IMPOSED ON HIM. 1.2 BY THE ASSESSEES OWN ADMISSION, HE HAD AGREED TO T HE ADDITION (EVEN THOUGH SUBJECT TO THE CONDITION THAT THE PENA LTY SHOULD NOT BE IMPOSED ON HIM). IT IS NOT HIS CASE THAT HE WAS CO ERCED INTO DOING SO. THEREFORE, IF THE PENALTY HAD NOT BEEN IMPOSED ON H IM, HE WOULD NOT HAVE AGITATED AGAINST THE PENALTY, NEW DELHI NOT AG AINST THE ASSESSMENT. HE WAS ENTITLED TO PREFER APPEAL AGAIN ST THE PENALTY (AND HE ACTUALLY DID SO). THE APPEAL AGAINST THE PENALT Y HAS TO BE DECIDED ON ITS OWN MERITS. IT IS SETTLED LAW THAT ADDITION IN ASSESSMENT DOES NOT I.T.A. NOS.5168, 5169/DEL/2011 I.T.A. NO.836/DEL/2012 4 AUTOMATICALLY LEAD TO PENALTY FOR CONCEALMENT. BUT , IT IS ALSO IMPORTANT TO REMEMBER THAT, SIMPLY BECAUSE PENALTY HAS BEEN IMPOSED, AN OTHERWISE ACCEPTED ASSESSMENT CANNOT BE ALLOWED TO BE DISPUTED. ASSESSMENT PROCEEDING AND PENALTY PROCEE DING ARE DIFFERENT AND THERE ARE DIFFERENT STANDARDS OF EVID ENCE FOR THE TWO, EVEN THOUGH THE POINT OF REFERENCE FOR THE TWO MAY BE THE SAME. GIVEN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE MAY BE SAID TO BE AGGRIEVED AGAINST THE PENALTY ORDER. BU T CONSIDERING THAT HE FAILED TO SUBSTANTIATE HIS VALUATION AND VOLUNTA RY AGREED TO THE A.O.S VALUATION, HE CANNOT BE SAID TO BE AGGRIEVED AGAINST THE ASSESSMENT. 1.3 GIVEN THE FACTS AND CIRCUMSTANCES OF THE CASE, IT I S HELD THAT: I) THE ASSESSEE WAS NOT REALLY AGGRIEVED AGAINST THE ASSESSMENT. II) THE APPEAL WAS PREFERRED VERY LATE AND NO REASONABL E EXPLANATION HAS BEEN FURNISHED FOR THE DELAY. III) IMPOSITION OF PENALTY PER SE IS NOT A GOOD GROUND F OR AGITATING AGAINST AN OTHERWISE ACCEPTED ASSESSMENT. CONSEQUENTLY, THE APPEAL IS NOT ADMITTED. FOR STAT ISTICAL PURPOSES, IT IS TREATED AS DISMISSED. 5. AGAINST THE ORDER OF LD. CIT(A), ASSESSEE BEING STILL AGGRIEVED, HAS PREFERRED THE PRESENT APPEAL AND WHEN HE WAS ASKED TO POINT OUT ANY INFIRMITY OR FLAW IN THE ORDER OF LD. CIT(A) EITHER WITH REGARD TO NOT CONDONING THE DELAY OR ON MERITS, HE COULD NOT EXPL AIN THE SAME EXCEPT STATING THAT HE HAS A GOOD CASE FOR CONDONATION OF DELAY BUT ON MERITS, PENALTY IMPOSED ON THE ASSESSEE IS 271(1)(C) HAS AL READY BEEN DELETED. THEREFORE, IT CANNOT BE SAID THAT THERE IS ANY GRIE VANCE. WITH REGARD TO OTHER TWO APPEALS, THE FACTS WERE STATED TO BE THE SAME A ND THE ISSUES INVOLVED ARE ALSO IDENTICAL WITH CERTAIN DIFFERENCE IN DATES AND AMOUNTS ETC. THEREFORE, IT WAS PLEADED THAT THE DECISION TO BE TAKEN FOR THIS APPEAL MAY BE ADOPTED FOR OTHER TWO APPEALS ALSO. I.T.A. NOS.5168, 5169/DEL/2011 I.T.A. NO.836/DEL/2012 5 6. LD. D.R. STRONGLY PLEADED FOR CONFIRMATION OF TH E ORDER OF LD. CIT(A) IN RESPECTS OF ALL THE THREE APPEALS. 7. WE HAVE HEARD BOTH THE SIDES AND CONSIDERED THE MATERIAL ON RECORD. IN VIEW OF THE FACTS AND CIRCUMSTANCES, WE ARE OF T HE VIEW THAT LD. CIT(A) HAS TAKEN A JUST AND APPROPRIATE VIEW IN THE CASE O F BOTH THE ASSESSEES FOR RESPECTIVE ASSESSMENT YEARS IN THE APPEALS FILED BE FORE HIM. NEITHER ANY INFIRMITY OR FLAW HAS BEEN POINTED OUT NOR NOTICED THEREFORE, WHILE CONCURRING WITH THE FINDINGS AND CONCLUSION AS DRAW N BY LD. CIT(A), WE UPHOLD HIS ORDER IN ALL THE THREE APPEALS AND DISMI SS THESE APPEALS BEING DEVOID OF ANY MERIT. 8. AS A RESULT, APPEALS OF BOTH THE ASSESSEES ARE D ISMISSED. 9. ORDER PRONOUNCED IN THE OPEN COURT SOON AFTER TH E CONCLUSION OF HEARING ON 19 TH MARCH, 2014. SD./- SD./- (J. S. REDDY) (U.B.S.BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 19 TH MARCH, 2014. SP. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXV, NEW DELHI AR, ITAT, 5. CIT(ITAT), NEW DELHI NEW DELHI
