SALIL S. RANADIVE, MUMBAI V. DCIT CEN CIR 15 & 16, MUMBAI

ITA 5261/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2738 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 07-05-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 21-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Cost of acquisition; Wrong claim
• Section: 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI . . , , ! '#, $ , % BEFORE SHRI B.R.BASKARAN, AM AND SHRI AMARJIT SINGH , JM / I.T.A. NO.5261/MUM/2012 ( $ & '& / ASSESSMENT YEAR: 2001-02) SALIL S. RANADIVE 303, SHRAVAN, 542, 13 TH ROAD, OLD KHAR (W), MUMBAI 400052 / VS. DY. COMM. OF INCOME TAX CENTRAL CIRCLE 15 & 16 AAYAKAR BHAVAN, MUMBAI ./ ./ PAN/GIR NO. : ADYPR0520R ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 28.03.2016 !' /DATE OF PRONOUNCEMENT: 08.07.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER DATED 02.07.2012 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL) 39, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO THE A.Y.2001-02. UNDER THIS APPEAL THE ASSESSEE HAS CHA LLENGED THE CONFIRMATION OF PENALTY LEVIED U/S.271(1)(C)OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). ASSESSEE BY: SHRI K. GOPAL DEPARTMENT BY: SHRI SHANDRAJIT SINGH ITA NO.1797/MUM/11 A.Y.2007-08 2 2. THE FACTS OF THE CASE ARE THAT THE SEARC H AND SEIZURE ACTION WAS TAKEN ON THE ASSESSEE ON 28.04.2006 VIDE WARRANT NO .5147 AT RESIDENTIAL ADDRESS FLAT NO.303, 3 RD FLOOR, SHRAVAN APARTMENT, 13 TH ROAD, OLD KHAR, MUMBAI 400052. A SURVEY U/S.133A /SEARCH WAS ALSO CONDUCTED AT THE BUSINESS PREMISES OF M/S. CHI NAI RANADIVE ASSOCIATES PVT. LTD. AT 1 ST FLOOR, ARMY AND NEVY BUILDING, KALA GHODA, M.G.ROAD, MUMBAI 400001. PAGES 1 TO 3(THR EE PAPERS) WERE IMPOUNDED FROM THE BUSINESS PREMISES WHICH WE RE THE COPY OF LETTER ADDRESS TO SHRI. DIP GHOSH, 86-A, JAL DARSHA N, NEPEAN SEA ROAD, MUMBAI -400036, REGARDING THE SALE OF ASSESSE ES FLAT AT KRISHNA KAVERI CHS, ANDHERI (WEST). ACCORDINGLY, T HE ASSESSEE WAS TO RECEIVE AN AMOUNT OF RS.28,00,000/- FOR THE SALE OF HIS FLATS NO.303 AND 304 AT D-2 BUILDING, KRISHNA KAVERI CHS, YAMUNA NAGAR OASHIWARA, ANDHERI(WEST), MUMBAI -400053. IT IS AL SO MENTIONED ON PAGE NO.1 THAT SHRI SALIL RANDIVE WAS TO RECEIVE RS .2,00,000/- AT THE TIME OF SIGNING OF MOU ON 10.04.2000 AND RS.26,00,0 00/- (RS.8,00,000/- IN CASH AND RS.18,00,000/- IN CHEQUE ) AT THE TIME OF SIGNING OF AGREEMENT AND FINAL HANDOVER. THE ASSES SEE CONFIRMED RECEIVING THE CASH VIDE STATEMENT RECORDED U/S.131 OF THE ACT RECORDED ON 29.04.2006. REGARDING CONFIRMATION OF TRANSACTI ON, ASSESSEE FILED RETURN OF INCOME OF RS.15,01,160/-. THE ASSESSEE H AD PURCHASED TWO FLATS IN KRISHNA KAVERI CHS VIDE AGREEMENT DATED 19 .09.1997 FROM ITA NO.1797/MUM/11 A.Y.2007-08 3 CAPTAIN REX JOHN SALDANHA FOR A SUM OF RS.10,00,000 /- EACH. THUS THE COST OF ACQUISITION OF TWO FLATS IS RS.20,00,00 0/- EACH. VIDE SEPARATE AGREEMENTS DATED 12.07.2000, THE ASSESSEE SOLD THESE TWO FLATS TO SMT. ASHA GHOSH AND SHRI DIP GHOSH FOR AGR EEMENT VALUE OF RS.10,00,000/- EACH. SALE CONSIDERATION IS RS.20,0 0,000/-, HOWEVER THE ASSESSEE ADMITTED THE ACTUAL VALUE RECORDED SAL E CONSIDERATION IS RS.20,00,000/- AND BEING RECEIVED IN CASH. 3. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND HAVE GONE THROUGH THE RECORD. THE ASSESSEE CHALLENGED THE PENALTY TO THE TUNE OF RS.4 ,88,438/- U/S. 271(1)(C) OF THE ACT. BEFORE DISCUSSING THE MATTER OF CONTROVERSY FURTHER IT IS NECESSARY TO ADVERT THE FINDING OF AS SESSING OFFICER ON RECORD:- 5. I HAVE CAREFULLY CONSIDERED THE ASSESSEES SUBM ISSIONS. IT IS ADMITTED FACT THAT IN THE ORIGINAL RETURN OF INC OME THE ASSESSEE HAD CLAIMED LONG TERM CAPITAL LOSS OF RS.6 ,78,228/- ON THE SALE OF THE FLATS WHEN IN ACTUAL FACT THE PE RIOD OF HOLDING OF THE FLATS WAS LESS 3 YEARS. THUS, THE ASSESSEE S RELIANCE ON THE SUPREME COURT JUDGEMENT IN THE CASE OF RELIANCE PETROPRODUCT (PRIVATE) LTD. (322 ITR 158) CAN BE CL EARLY DISTINGUISHED SINCE IN THIS CASE IT IS NOT A QUESTI ON OF INACCURATE CLAIM BUT A WRONG CLAIM BASED ON FACTS. IT IS FURT HER SEEN THAT HAD THE SEARCH NOT TAKEN PLACE AT THE PREMISES OF T HE ASSESSEE, ITA NO.1797/MUM/11 A.Y.2007-08 4 THE FACT REGARDING THE RECEIPT IN CASH OF RS.8 LAKH S ON THE SALE OF FLAT WOULD NOT HAVE COME TO LIGHT AND THE ASSESSEE WOULD NOT HAVE OFFERED THE SAME FOR TAXATION. I AM ACCORDING LY SATISFIED THAT THE ASSESSEE HAD FILED INACCURATE PARTICULARS IN RESPECT OF THE CAPITAL GAIN ARISING FROM THE SALE OF THE FLATS AT KRISHNA KAVERI CHS. 5.1 IT IS SEEN FROM THE ABOVE FACTS THAT THE SHORT TERM CAPITAL GAIN OF RS.8 LAKHS WAS NOT DISCLOSED IN THE ORIGINA L RETURN OF INCOME BY THE ASSESSEE. FURTHER, LONG TERM CAPITAL LOSS OF RS.6,78,228/- WAS WRONGLY CLAIMED AND TO THAT EXTEN T THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME . THE ASSESSEE HAS ADMITTEDLY SOLD THE FLATS FOR RS.28 LA KHS AND RECEIVED RS.20 LAKHS IN CHEQUE AND THE REMAINING AM OUNT OF RS.8 LAKHS IN CASH WHICH HE HAS NOT OFFERED FOR ASS ESSMENT AS SHORT TERM CAPITAL GAIN IN THE ORIGINAL RETURN. TH E ASSESSEE OFFERED THE INCOME ACCRUING ON ACCOUNT OF RECEIPT O F CASH ON SALE OF FLAT ONLY AFTER THE SEARCH WAS CONDUCTED ON THE ASSESSEE. IT IS THUS APPARENT THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME AND FURNISHED INACCURATE PARTICULARS OF H IS INCOME. IT IS FURTHER SEEN THAT THE ASSESSEE HAS NOT ONLY FAIL ED TO OFFER THIS RS.8 LAKHS WHICH WAS RECEIVED IN CASH FOR ASSESSMEN T IN THE ORIGINAL RETURN FILED AND IN ADDITION TO THE ABOVE THE ASSESSEE CLAIMED A FURTHER LONG TERM CAPITAL LOSS OF RS.6,78 ,228/-. IN ITA NO.1797/MUM/11 A.Y.2007-08 5 VIEW OF THE ABOVE TAXABLE INCOME A FURTHER LONG TER M CAPITAL LOSS OF RS.6,78,228/-. IN VIEW OF THE ABOVE TAXABL E INCOME HAS BEEN UNDER STATED TO THE TUNE OF RS.14,78,228/- BY FILING WRONG PARTICULARS REGARDING THE NATURE OF CAPITAL GAIN I. E. SHORT TERM CAPITAL GAIN WAS WRONGLY CLAIMED AS LONG TERM CAPI TAL LOSS. HENCE, THE AMOUNT OF INCOME IN RESPECT OF WHICH PAR TICULARS HAVE BEEN CONCEALED OR INACCURATE PARTICULARS HAVE BEEN FURNISHED BY THE ASSESSEE IS RS.14,78,228/- 6. THE ASSESSEE HAS DECLARED A LONG TERM CAPITAL LO SS IN RESPECT OF THE FLATS SOLD AT RS.6,78,228/- IN THE R ETURN FILED U/S.139(1) OF THE I.T.ACT, 1961. THE ASSESSEE HAS FILED A RETURN IN RESPONSE TO NOTICE U/S.153A AT RS.15,01,060/- IN WHICH HE HAS INCLUDED THE CASH RECEIPT FROM SALE OF FLATS AT RS. 8 LAKHS. THE TOTAL INCOME DETERMINED AFTER GIVING EFFECT TO LD. CIT(A)S ORDER IS RS.15,01,060/-. THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED OR INACCURATE PARTI CULARS HAVE BEEN FURNISHED IS RS.14,78,228/- AS DISCUSSED IN 5 ABOVE. THE ASSESSEE IS ACCORDINGLY, LIABLE TO LEVY OF PENALTY ON RS.14,78,228/-. THE AMOUNT OF TAX SOUGHT TO BE EVA DED ON THE UNDISCLOSED INCOME OF RS.14,28,228/- IS RS.4,88,438 /-. I, THEREFORE, PROPOSE TO LEVY A PENALTY @ 100% OF TAX SOUGHT TO BE EVADED AMOUNTING TO RS.4,88,438/-. ITA NO.1797/MUM/11 A.Y.2007-08 6 3.1 AFTER PASSING THE ORDER OF THE ASSESSING OFFICE R ASSESSEE PREFERRED AN APPEAL BEFORE LEARNED CIT(A), WHO CONF IRMED THE SAID ORDER. THE LEARNED CIT(A) HAS GIVEN THE DETAILED F INDING IN PARA NO.5 AND 6 OF THE ORDER DATED 02.07.2012 IN QUESTION. H OWEVER, CONCLUDING PARA 6.4.1 IS HEREBY REPRODUCED BELOW:- 6.4.1 IN THIS CASE TOTAL INCOMES RETURNED IN THE ORIGINAL RETURN OF INCOME AND IN THE RETURN TO INCOME FILED IN RESPONSE TO SECTION 153A OF THE I.T. ACT ARE POSITIVE AND HENCE EXPLANATION 4(A) IS NOT APPLICABLE. CERTAINLY EXPLANATION 4(6) IS NOT APPLICABLE. AS A RESULT THE AMOUNT OF TAX SOUGHT T O BE EVADED SHOULD BE FOUND OUT BY INVOKING EXPLANATION 4(C) TO SECTION 271(1)(C) OF THE I. T. ACT. IN THIS CASE TOTAL INC OME ASSESSED ULTIMATELY IS RS.15,01,060/- AND THE AMOUNT OF INCO ME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED IS THE SHORT TERM CAPITAL GAINS OF RS.8 LAKHS. THE A.O. IS DIRE CTED TO RECOMPUTE THE PENALTY U/S.271(1)(C) APPLYING EXPLAN ATION 4(C) TO SECTION 271(1)(C) OF THE I. T. ACT. 3.2 THE ASSESSING OFFICER ASSESSED THE CONCEALMENT OF INCOME TO THE TUNE OF RS.14,78,228/-AND LEVY A PENALTY @ 100% OF TAX SOUGHT TO BE EVADED AMOUNTING TO RS.4,88,438/-. HOWEVER, THE LEARNED CIT(A) HAS ARRIVED AT THIS CONCLUSION THAT THE ASSESSEE ON LY CONCEALED THE RS.8 LAKHS HAS NOT BEEN SHOWN AS SHORT TERM CAPITAL GAIN . IT IS NOT IN DISPUTE MOREOVER ADMITTED BY THE ASSESSEE ALSO THAT THE ASSESSEE FAILED ITA NO.1797/MUM/11 A.Y.2007-08 7 TO SHOW THE SALE ACCOUNT TO THE TUNE OF RS.8 LAKHS IN HIS RETURN. UNDOUBTEDLY, THERE IS NO EXPLANATION ON RECORD AS T O WHY THE SAID AMOUNT OF RS.8 LAKHS WAS NOT REFLECTED IN THE RETUR N OF INCOME RESULTANTLY THE ASSESSEE DID NOT SHOW THE SHORT TER M CAPITAL GAIN TO THE TUNE OF RS.8 LAKHS. IT IS CLEAR CASE WHEREIN T HE ASSESSEE DID NOT DISCLOSE AN AMOUNT OF RS.8 LAKHS IN HIS RETURN. MA KING THE STATEMENT BEFORE THE TAX AUTHORITY NOWHERE JUSTIFY THE CLAIM OF THE ASSESSEE BECAUSE IT IS NOT A CASE OF THE RECOVERY OF UNACCOU NTED CASH / OTHER ARTICLES SUCH AS JEWELER ETC. IN SIMPLE SENSE, THE ASSESSEE DID NOT SHOW THE SAID AMOUNT AS INCOME IN HIS RETURN WHICH CAME INTO EXISTENCE ONLY AFTER THE SEARCH WAS CONDUCTED ON TH E ASSESSEE. THERE IS NO COGENT AND CONVINCING EVIDENCE ON RECORD TO W HICH IT CAN BE ASSUMED THAT THE LEARNED CIT(A) HAS PASSED THE ORDE R WRONGLY AND ILLEGALLY. NO DISTINGUISHABLE FACTS TO THE FINDING OF THE LEARNED CIT(A) HAS BEEN PRODUCED ON RECORD. IN VIEW OF THE ABOVE SAID DISCUSSION WE ARE OF THE VIEW THAT THE LEARNED CIT( A) HAS PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH DOES NOT REQU IRE TO INTERFERE WITH AT THIS APPELLANT STAGE. 4. IN RESULT THE APPEAL FILED BY THE ASSESSEE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JULY , 2016. SD/- SD/- (B.R.BASKARAN) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED :8 TH JULY, 2016 ITA NO.1797/MUM/11 A.Y.2007-08 8 MP MP MP MP ) * +$!', -,'! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ) / BY ORDER, - & //TRUE COPY// ./# /(DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI