Shri Vijay Kumar Ghelani, New Delhi V. ITO ward-47(1), New Delhi

ITA 5184/DEL/2019

AI Insights

The case involves Shri Vijay Kumar Ghelani, the appellant, who contested a penalty of Rs. 15,52,470 levied by the AO under section 271(1)(c) of the Income Tax Act, pertaining to the assessment year 2009-10. The penalty was initially confirmed by the CIT(A)-16, New Delhi. The dispute arose from an addition of Rs. 46.46 lakhs made by the AO, which was based on information regarding short-term capital gains from the sale of immovable property. The AO had used the circle rate for computing capital gains, which was higher than the actual sale proceeds. The CIT(A) later directed the AO to consider the actual sale proceeds of Rs. 80 lakhs for the computation of capital gains. The Tribunal's decision to adjust the penalty calculation was in line with the CIT(A)'s directive to use the actual sale proceeds.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 116412 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: F
• Next Hearing Date: 17-09-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 05-06-2019
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘F’, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. ASTHA CHANDRA JUDICIAL MEMBER ITA No.5184/Del/2019 Assessment Year: 2009-10 Shri Vijay Kumar Ghelani 1516, Kashmere Gate, New Delhi PAN No.AAGPG5572K Vs ITO Ward- 47 (1) New Delhi (APPELLANT) (RESPONDENT) Appellant by None Respondent by Sh. Vivek Vardhan, Sr DR Date of hearing: 18/09/2023 Date of Pronouncement: 18/09/2023 ORDER PER N. K. BILLAIYA, AM: This appeal by the assessee is preferred against the order of the CIT(A)-16, New Delhi dated 19.03.2019 pertaining to A.Y.2009-10. 2. The grievance of the assessee read as under : “1. That on the facts and the circumstances of the case, the Ld. CIT(A)-16, New Delhi has erred in confirming the penalty of Rs.15,52,470/- levied by the AO u/s. 271 (1)(c) of the IT Act in an arbitrary, uncalled for and illegal manner and as such the same is liable to be quashed. 2 2. Without prejudice to our above ground, that the Ld. CIT(A)-16, New Delhi, has not given the effect of quantum appeal decided in favour of the Appellant and as such it is prayed that suitable directions may please be issued to the Lower Authorities to give the appeal effect and reduce the penalty to Rs.66,77,800/- 3. This appeal was first listed for hearing on 15.06.2022 and after that on several occasions the appeal was listed for hearing as per order sheet entries with notice to the assessee. The assessee chose not to attend, therefore, we decided to proceed exparte. 4. The quarrel revolves around the fact that an addition of Rs.46.46 lacs was made by the AO on account of short term capital gains earned by the assessee on sale of immovable property. The addition was made on the basis of the AIR information regarding sale of property. On verification the AO came to know that the assessee has sold property at Rs. 80 lacs when the circle rate was 10756000/- . Adopting the circle rate the AO computed capital gains. 5. The assessment was challenged before the CIT(A) who directed the AO to compute the capital gains adopting Rs.80 lacs as a sale proceed. The AO levied the penalty. 6. On a thoughtful consideration to the factual matrix discussed here in above in the light of ground No.2 of the appeal we are of the considered view that the AO should have levied penalty after giving relief to the assessee as directed by the CIT(A) in respect of the sale consideration to be taken at Rs. 80 lacs 3 instead of circle rate of Rs.10756000/-, therefore, we direct the AO to re-compute the penalty by adopting the sale proceeds at Rs. 80 alcs. With these directions the appeal is partly allowed. 7. Decision announced in the open court on 18.09.2023. Sd/- Sd/- [ASTHA CHANDRA] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: .09.2023 *Neha* Copy forwarded to: 1. Appellant 2. Respondent 3. CITi 4. CIT(A) 5. DR Asst. Registrar ITAT, New Delhi