Manjoor Ahmed, JODHPUR V. ITO, JODHPUR

ITA 541/JODH/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54339 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 06-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: N R MERTIA
• Keywords: Revised return
• Section: 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH : JODHPUR BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO.541/JU/2009 ASSESSMENT YEAR : 2006-07 MANJOOR AHMED, PROP. OF M/S JANTA MOTORS, 5 TH PAL ROAD, JODHPUR. PAN : AASPA5791N VS. THE INCOME TAX OFFICER, WARD 3 (2), JODHPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI N.R. MERTIA, AR REVENUE BY : SHRI N.A. JOSHI, DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER OF LEARNED CIT (A) DATED 30 TH JULY, 2009 PASSED FOR ASSESSMENT YEAR 2006-07. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT LEARNED CIT (A) HAS ERRED IN CONFIRMING THE PENALTY AMOUNTING TO ` 3,13 ,528/- IMPOSED U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. THE BRIEF F ACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 31 ST OCTOBER, 2006 DECLARING AN INCOME OF ` 2,74,049/-. THE CASE OF TH E ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE U/S 143(2) WAS ISSUED ON 15 TH JUNE, 2007. IT CAME TO THE NOTICE OF THE ASSESSING OF FICER THAT THE ASSESSEE HAD SOLD AN AGRICULTURAL LAND TO M/S NINJA CONSTR UCTION PVT. LTD., JODHPUR DURING F.Y. 2004-05. THE LAND WAS SOLD FOR A CONSIDERATION OF ` 2,85,00,000/- VIDE REGISTERED DEED DATED 13 TH ITA NO.541/JU/2009 2 SEPTEMBER, 2004. THE SALE PROCEEDS HAS BEEN DEPOSITED IN THE BANK WHICH GAVE RISE TO AN INTEREST INCOME OF ` 4 LAC. AC CORDING TO THE ASSESSING OFFICER, THE ASSESSEE DID NOT OFFER CAPITAL GAINS ON THE SALE OF LAND AS WELL AS INTEREST INCOME FROM THE BANK FOR T AX. THE ASSESSEE HAS FILED A LETTER ON 26.12.2007 VIDE WHICH HE OFFER ED THE INTEREST INCOME ON SUCH DEPOSITS AND PAID THE TAX AMOUNTING TO ` 2,08,673/- FOR ASSESSMENT YEAR 2006-07 AND ` 1,76,029/- FOR ASSESSMENT YEA R 2005- 06. THIS AMOUNT WAS PAID ON 19.12.2007. THE ASSESSEE UL TIMATELY FILED A REVISED RETURN FOR ASSESSMENT YEAR 2006-07 AS WEL L AS 2005-06. THE ASSESSING OFFICER HAD ISSUED NOTICE U/S 148 IN ASSESSMENT YEAR 2005-06 AND REGULARIZED SUCH RETURN. THE CASE OF THE ASSESSEE WAS THAT HE HA SOLD AGRICULTURAL LAND AND NO CAPITAL GAI N WAS LEVIABLE ON SALE OF SUCH AGRICULTURAL LAND. AS FAR AS THE INTEREST INCOME IS CONCERNED, HE HAS FILED THE REVISED RETURN AND OFFERE D SUCH INTEREST INCOME FOR TAX. THE ASSESSEE FURTHER CONTENDED THAT TH E ASSESSING OFFICER HAS NOT INITIATED ANY INVESTIGATION IN THIS YE AR. HE SIMPLY ISSUED A NOTICE U/S 143 (2) ON 15 TH JUNE, 2007 FOR APPEARANCE OF THE ASSESSEE ON 25 TH JULY, 2007. THEREAFTER, THE PROCEEDINGS WERE ADJOU RNED SINE DIE. IT ALSO EMERGES OUT THAT THE ASSESSING OFFICER TAKE N UP THE PROCEEDINGS IN THE MONTH OF NOVEMBER, 2008. THUS, AC CORDING TO THE ASSESSEE, HE HAS OFFERED THE INCOME ON HIS OWN AND THE DE PARTMENT HAS NOT DUG OUT ANY CONCEALMENT OF THE INCOME AT THE END OF THE ASSESSEE. 3. LD. ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE. HE WAS OF THE OPINION THAT TAXABILITY OF INCO ME IN RESPECT OF THE ASSESSEE CAME TO THE NOTICE OF THE REVENUE WHILE SCR UTINIZING THE RETURN OF M/S NINJA CONSTRUCTION PVT. LTD. THE ASSESSEE WAS AWARE OF THE FACT THAT THE DEPARTMENT HAS LAY ITS HAND ON HIS T AXABLE INCOME, THEREFORE, HE OFFERED ALL THESE INCOMES FOR TAX. LD. ASSESSING OFFICER ITA NO.541/JU/2009 3 HAS IMPOSED A PENALTY OF ` 3,13,528/- WHICH HAS BEEN C OMPUTED @ 150% OF THE TAX SOUGHT TO BE EVADED. 4. THE APPEAL TO THE CIT (A) DID NOT BRING ANY RELI EF TO THE ASSESSEE. 5. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HA VE GONE THROUGH THE RECORD CAREFULLY. THE ASSESSEE HAS FILED TH E REVISED RETURN BEFORE ANY QUESTIONNAIRE WAS ISSUED BY THE ASSESSING OFFICE R U/S 142 (1) FOR SCRUTINIZING HIS RETURN. THE ASSESSEE WAS UNDER T HE IMPRESSION THAT HE HAS SOLD AGRICULTURAL LAND WHICH WOULD NOT GI VE RISE TO ANY CAPITAL GAINS. HE HAS REVISED HIS RETURN WITHIN THE TI ME PERIOD AVAILABLE U/S 139 (5) OF THE INCOME-TAX ACT. ACCORD ING TO THE ASSESSEE, IT WAS A BONA FIDE ERROR ON HIS PART FOR NOT OFFERIN G THE INCOME IN THE ORIGINAL RETURN BECAUSE HE WAS UNDER THE IMPRESSION THA T NO CAPITAL GAIN IS LEVIABLE AND ULTIMATELY THE SALE PROCEEDS OF T HE AGRICULTURAL LAND WERE NOT HELD TO BE TAXABLE FOR THE PURPOSE OF CAPITAL GAINS. IT IS THE INTEREST INCOME ON INVESTMENT OF SUCH SALE PROCEEDS WHICH HAS ONLY BEEN HELD AS TAXABLE. TAKING INTO CONSIDERATION THE EXPLANATION OF THE ASSESSEE, WE ARE OF THE VIEW THAT THERE IS NO DEL IBERATE ATTEMPT ON THE PART OF THE ASSESSEE IN CONCEALING THE PARTICULA RS OF INCOME. HE HAS FILED HIS REVISED RETURN BEFORE ANY INQUIRY WAS INI TIATED BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2006-07. LEARNED AUTH ORITIES ARE NOT JUSTIFIED IN VISITING THE ASSESSEE WITH PENALTY, MORE SO, @ 150% OF THE TAX SOUGHT TO BE EVADED. THE ASSESSING OFFICER HAS N OT GOT ANY MATERIAL ON THE RECORD WHICH SUGGEST THAT EXPLANATION OF THE ASSESSEE IS FALSE OR HE HAS MADE A DELIBERATE ATTEMPT FOR CONCE ALING THE PARTICULARS OF HIS INCOME. THUS, TAKING INTO CONSIDERA TION ALL THE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE D OES NOT DESERVE TO BE VISITED WITH PENALTY U/S 271 (1)(C). WE ALLOW THE APPEAL OF THE ASSESSEE AND QUASH THE PENALTY ORDER. ITA NO.541/JU/2009 4 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALL OWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 29.08.20 11. SD/- SD/- [K.D. RANJAN] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 29.08.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSTT. REGISTRAR, ITAT, JODHPUR BENCH