Sanjeev Grover, New Delhi V. ITO, New Delhi

ITA 5588/DEL/2012

• Counselvise Citation: 558820114 RSA 2012
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 22-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 05-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RENUKA JAIN GUPTA
• Keywords: Business income; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI R. P. TOLANI, JUDICIAL MEMBER AND SHRI J. S. REDDY, ACCOUNTANT MEMBER I.T.A. NOS. 5588/DEL/2012 ASSESSMENT YEARS: 2008-09 SANJEEV GROVER VS. ITO 5/9, OLD RAJINDER NAGAR WARD-12(2) NEW DELHI-110060 NEW DELHI. PAN: AAHPG2949P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. K. SAMPATH, ADV. REVENUE BY : SMT. RENUKA JAIN GUPTA, SR.DR. ORDER PER J. S. REDDY, AM : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF LD. CIT (APPEALS)-XV, NEW DELHI, DATED 03.09.2012 AGAI NST THE CONFIRMATION OF PENALTY U/S 271(1)(C). THE FACTS OF THE CASE ARE BROUGHT OUT IN THE ASSESSMENT ORDER WHICH IS EXTRACTED FOR READY REFER ENCE: COMPUTATION OF LONG TERM CAPITAL GAIN & SHORT TERM CAPITAL GAIN ON THE SALE OF PROPERTY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION SO LD A PROPERTY FOR A TOTAL SALES CONSIDERATION OF RS.30,0 0,000/- AND AFTER INDEXING THE COST OF ACQUISITION A LONG TERM CAPITAL GAIN OF 2 RS.61,960/- HAS BEEN DECLARED. WHILE THE PERUSING T HE COST OF ACQUISITION FILED BY THE ASSESSEE IT WAS SEEN TH AT THE ASSESSEE HAD ALSO INDEXED THE COST OF IMPROVEMENT MADE DURIN G YEAR AND PAID LONG TERM CAPITAL GAIN ON IT, WHENEVER ON THE SAME IS LIABLE TO PAY SHORT TERM CAPITAL GAIN. VIDE THIS OF FICE QUERY DATED 15-09-2010 THE AR OF THE ASSESSEE WAS CONFRON TED WITH THE ABOVE ANOMALY WHO DID NOT RAISE ANY OBJECTION A ND FILED A REVISED COMPUTATION FOR THE AY 2008-09 ON 21-09-201 0 IN WHICH DECLARING AN INCOME OF RS.2,60,330/-. AS PER REVISED COMPUTATION THE ASSESSEE HAS OFFERED SHORT TERM CAP ITAL GAIN AMOUNTING TO RS.1,34,800/- AND RS.51,411 AS LONG TE RM CAPITAL GAIN DURING THE ASSESSMENT YEAR. 2. THE AO LEVIED PENALTY U/S 271(1)(C), AS THE ASSE SSEE DID NOT FILE A REPLY TO THE SHOW CAUSE NOTICE. 3. ON APPEAL THE FIRST APPELLATE AUTHORITY CONSIDER ED THE SUBMISSIONS OF THE ASSESSEE AND REJECTED THE SAME BY APPLYING THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ZO OM COMMUNICATION PVT. LTD. 327 ITR 510 AS WELL AS THE DECISION IN THE CAS E OF M/S KANCHENJUGA ADVERTISING (P) LTD. VS. CIT (ITA NO. 944/2011). 4. AGGRIEVED THE ASSESSEE IS BEFORE US. 5. WE HEARD MR. K. SAMPATH THE LD. COUNSEL FOR THE ASSESSEE AND SMT. RENUKA JAIN GUPTA THE LD. SR.DR ON BEHALF OF THE RE VENUE. 3 6. THE ASSESSEE HAD A PLOT OF LAND AND HAD CONSTRUC TED THE HOUSE THEREON. SUBSEQUENTLY ASSESSEE SOLD THE HOUSE PROPE RTY ALONG WITH THE LAND. THE LAND SOLD WAS ASSESSABLE AS LONG TERM CAPITAL A SSET AND WHERE AS THE HOUSE SOLD WAS AN ASSESSABLE AS SHORT TERM CAPITAL GAINS. THE ASSESSEE DECLARED THE ENTIRE SALE PROCEEDS AS ASSESSABLE AS LONG TERM CAPITAL GAINS, AND CLAIM INDEXATION. DURING THE SCRUTINY PROCEEDINGS, THE AO DISCOVERED THE SAME AND WHEN HE QUESTIONED THE ASSESSEE, A REVISED COMPUTATION WAS FILED OFFERING THE SHORT TERM CAPITAL GAIN TO TAX. PENALT Y WERE LEVIED U/S 271(1) (C). 7. THE ASSESSEE IN THIS CASE HAS NOT FILED TO OFFER AN EXPLANATION, WHEN HE RECEIVED A NOTICE U/S 271(1)(C). ON THIS SOLE GROUN D, WE HAVE TO CONFIRM THE PENALTY LEVIED BY THE FIRST APPELLATE AUTHORITY. IN OUR CONSIDERED VIEW THE FIRST APPELLATE AUTHORITY HAS RIGHTLY RELIED ON THE DECISION IN THE CASE OF ZOOM COMMUNICATION (SUPRA). WHEN THERE IS NO EXPLANATION WHATSOEVER BY THE ASSESSEE BEFORE THE AO, THE QUESTION OF CONSIDERING WHETHER THE EXPLANATION IS BONA FIDE OR NOT, DOES NOT ARISE. HENCE WE UPHOL D THE ORDER OF THE FIRST APPELLATE AUTHORITY AND DISMISS THE APPEAL OF THE A SSESSEE. ORDER PRONOUNCED IN THE OPEN COURT ON 29/11/2013. SD/- SD/- ( R. P. TOLANI ) (J. S. REDDY) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED: 29/11/2013 *AK VERMA* COPY FORWARDED TO: 1. ASSESSEE 4 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR