DCIT 10(2), MUMBAI V. AMBER CRAFTS P.LTD, MUMBAI

ITA 5317/MUM/2013

• Counselvise Citation: 531719914 RSA 2013
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 31-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A , BENCH MUMBAI , BEFORE SHRI R.C.SHARMA , A M & SHRI SANJAY GARG , J M ITA N O. 5317 / MUM/20 1 3 ( ASSESSMENT YEAR : 2010 - 2011 ) DCIT - 10(2), MUMBAI - 20 VS. M/S AMBER CRAFT PVT. LTD., 11 - A, LBS MARG, NEXT TO MAHAJAN MILLS, VIKROLI (EAST), MUMBAI - 79 PAN/GIR NO. : A A ACA 8628 D ( APPE LLANT ) .. ( RESPONDENT ) /REVENUE BY : SHRI ASGHAR ZAIN /ASSESSEE BY : SHRI SANJAY PARIKH DATE OF HEARING : 02/12/ 201 4 DATE OF PRONOUNCEMENT 02/12 / 201 4 O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 21 - 5 - 2013 FOR THE ASSESSMENT YEAR 2009 - 2010 , IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE I.T. ACT . 2. THE ONLY GRIEVANCE O F THE REVENUE RELATES TO DELETION OF PENALTY IMPOSED WITH RESPECT TO ADDITION MADE U/S.50C OF THE I.T.ACT. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. WHILE FRAMING THE SCRUTINY ASSESSMENT, THE AO MADE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN DISCLOSED BY ASSESSEE BY APPLYING PROVISIONS OF SECTION 50C. THE AO ALSO LEVIED PENALTY U/S.271(1)(C) WITH RESPECT TO ADDITION MADE U/S.50C. BY THE IMPUGNED ORDER, CIT(A) DELETED THE ITA NO. 5317 / 1 3 2 PENALTY IMPOSED U/S.271(1)(C) BY APPLYING THE DECISION OF THE TRIBU NAL IN THE CASE OF PRAKASH CHAND NAHAR VS. ITO, 110 TTJ 886 (JODH) , MRS. N. MEENAKSHI, 125 TTJ 856(CHENNAI) AND RENU HINGORANI VS. ACIT, ITA NO.2210/M/2010, DATED 22 - 12 - 2010 (MUMBAI BENCH), WHEREIN FOLLOWING WAS THE OBSERVATION : - '5. WE HAVE HEARD THE RIVA L CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IT IS A FACT THAT THE ADDITION HAS BEEN MADE BY THE AO IN THE REVISIONARY PROCEEDINGS. THE ADDITION HAS BEEN MADE ON THE BASIS OF PROVISIONS OF SECTION 50C. IT IS NOT THE CASE OF THE AO THAT THE ASSESSEE HA S RECEIVED CONSIDERATION OVER AND ABOVE THAN THAT DECLARED IN THE SALES DEED. THE AO HAS NOT DISPUTED THE CONSIDERATION RECEIVED BY THE ASSESSEE. THE ADDITION HAS BEEN MADE ON THE BASIS OF DEEMING PROVISIONS OF SECTION 50C. THE ASSESSEE HAS FURNISHED ALL T HE FACTS OF SALE. DOCUMENTS/ MATERIAL BEFORE THE AO. THE AO HAS NOT DOUBTED THE GENUINENESS OF THE DOCUMENTS/DETAILS FURNISHED BY THE ASSESSEE. ONLY BECAUSE THE ASSESSEE AGREED TO THE ADDITIONS BECAUSE OF THE DEEMING PROVISIONS IT CANNOT BE CONSTRUED TO BE FILING OF INACCURATE PARTICULARS ON THE PART OF THE ASSESSEE. THE ASSESSEE AGREED TO ADDITION ON THE BASIS OF VALUATION MADE BY THE STAMP VALUATION AUTHORITY CANNOT BE A CONCLUSIVE PROOF THAT THE SALE CONSIDERATION AS PER THE SALE AGREEMENT IS SEEMED TO B E INCORRECT AND WRONG. IN VIEW OF THESE FACTS WE ARE OF THE CONSIDERED VIEW THAT PENALTY CANNOT BE LEVIED ON THE BASIS OF DEEMING PROVISION. WE ACCORDINGLY DELETE THE SAME. 4. AGAINST THE ABOVE ORDER OF CIT(A), THE REVENUE IS IN FURTHER APPEAL BEFORE US. 5. WE HAVE CONSIDERED RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND DELIBERATED ON THE JUDICIAL PRONOUNCEMENTS REFERRED BY THE CIT(A) IN HIS ORDER AS WELL AS CITED BY LD. AR AND DR BEFORE US. WE FOUND THAT ISSUE UNDER C ONSIDERATION IS COVERED BY THE ORDER OF VARIOUS BENCHES OF THE TRIBUNAL AND ALSO BY THE DECISION OF THE HON BLE KOLKATA HIGH COURT IN THE CASE OF MADAN THEATRES LTD., 33 DTR 217 ,WHEREIN IT WAS HELD THAT NO PENALTY WAS LEVIABLE U/S.271(1)(C) OF THE ACT, WHE REIN THE ADDITION WAS MADE BY THE AO INVOKING PROVISIONS OF SECTION 50C AND NOTHING WAS BROUGHT ON RECORD BY THE DEPARTMENT TO SUBSTANTIATE THAT ASSESSEE WAS IN RECEIPT OF AMOUNT MORE THAN WHAT HAS ITA NO. 5317 / 1 3 3 BEEN SHOWN BY IT. IN THE INSTANT CASE ALSO WE FOUND THAT N OTHING WAS BROUGHT ON RECORD BY THE AO TO ALLEGE THAT THE ASSESSEE WAS IN RECEIPT OF SALE CONSIDERATION MORE THAN WHAT HAS BEEN SHOWN IN THE SALE DEED. ACCORDINGLY, THERE WAS NO JUSTIFICATION FOR LEVYING PENALTY FOR THE ADDITION MADE U/S.50C IN VIEW OF THE DECISION DISCUSSED HEREINABOVE. 6 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 02/12 / 201 4 . 02/12 / 2014 SD/ - SD/ - . ( ) ( SANJAY GARG ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 02/12 /2014 /PKM , PS COPY OF THE ORDER FORWARD ED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. // TRUE COPY//