The ITO, Ward-1(3)(1), Petlad V. Shri Ashwinbhai Raojibhai Patel, Anand

ITA 572/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1523 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 18-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 04-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALPESH PARMAR SR DR
• Assessee Lawyers: DARSHAN BELANI AR
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , ! BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ I.T.A. NO.572/AHD/2016 ( / ASSESSMENT YEAR : 2010-11) INCOME TAX OFFICER WARD-1(3)(1) R.K. BUILDING NEAR RAILWAY STATION PETLAD 388 450 / VS. SHRI ASHWINBHI RAOJIBHAI PATEL C/O. SARYUDAS SHROFF IN BAZAR AT:DHARMAJ, TAL.PETLAD DIST.ANAND 388 430 & ./ ./ PAN/GIR NO. : ACZPP 4351 N ( &) / APPELLANT ) .. ( *+&) / RESPONDENT ) &), / APPELLANT BY : ALPESH PARMAR, SR.DR *+&) -, / RESPONDENT BY : DARSHAN BELANI, AR . - / DATE OF HEARING 18/05/2016 /012 - / DATE OF PRONOUNCEMENT 24/05/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-V, VADODARA D ATED 26/11/2015 FOR THE ASSESSMENT YEAR 2010-11. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- ITA NO.572/AHD/ 2016 ITO VS. SHRI ASHWINBHAI RAOJIBHAI PATEL ASST.YEAR 2010-11 - 2 - 2.2. ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM R EMUNERATION AND INTEREST FROM PARTNERSHIP-FIRM AND CAPITAL GAINS. ASSESSEE FILED HIS RETURN OF INCOME ON 25/03/2011 DECLARING TOTAL INCO ME OF RS.3,27,120/-. CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT U/S.1 43(3) OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WAS FRAMED VIDE ORDER DATED 28/12/2012 AND THE TOTAL INCOME WAS DETERMINE D AT RS.42,53,885/- INTER ALIA BY MAKING THE ADDITION OF RS.38,44,204/- ON ACCOU NT OF SHORT TERM CAPITAL GAINS (STCG) AND OF RS.82,558/- ON ACC OUNT OF INTEREST INCOME NOT SHOWN BY THE ASSESSEE. ON THE AFORESAID ADDITIONS, THE AO VIDE ORDER DATED 18/02/2015 CONCLUDED THAT ASSESSEE HAS CONCEALED AND FURNISHED INACCURATE PARTICULARS OF INCOME AND WAS THEREFORE LIABLE FOR PENALTY U/S.271(1)(C) OF THE ACT. HE ACCORDINGLY L EVIED PENALTY OF RS.11,95,600/-. AGGRIEVED BY THE PENALTY ORDER, ASS ESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), WHO VIDE ORDER DATED 2 6/11/2015 (IN APPEAL NO.CAB/5-885/2014-15) GRANTED SUBSTANTIAL RELIEF TO THE ASSESSEE BY HOLDING AS UNDER:- 5.10 IN VIEW OF THE ABOVE DISCUSSION, AS FAR AS THE ISSU E REGARDING ADDITION ON ACCOUNT OF STCG OF RS. 38,44,204/- IS C ONCERNED, IT IS CLEAR THAT THIS IS NEITHER A CASE OF CONCEALMENT NOR OF F URNISHING OF INACCURATE PARTICULARS. FURTHER, HON'BLE ITAT, AHMEDABAD IN TH E CASE OF SHRI CHIMANLAL MANILAL PATEL VS ACIT IN ITA NO. 508/AAHD /2010 HAS HELD AS UNDER ON THE ISSUE- '5. WE HAVE HEARD THE RIVAL 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 ADDIT ION HAS ITA NO.572/AHD/ 2016 ITO VS. SHRI ASHWINBHAI RAOJIBHAI PATEL ASST.YEAR 2010-11 - 3 - BEEN MADE ON THE BASIS OF PROVISIONS OF SECTION SOC . IT IS NOT THE CASE OF THE AO THAT THE ASSESSEE HAS RECEIVED C ONSIDERED OVER AND ABOVE THAN THAT DECLARED IN THE SALES DEED . THE AO HAS NOT DEED. THE AO HAS NOT DISPUTED THE CONSIDERA TION RECEIVED BY THE ASSESSEE. THE ADDITION HAS BEEN MAD E ON THE BASIS OF DEEMING PROVISIONS OF SECTION 50C. THE ASS ESSEE HAS FURNISHED ALL THE FACTS OF SALE, DOCUMENTS/MATERIAL BEFORE THE AO. THE AO HAS NOT DOUBTED THE GENUINENESS OF THE DOCUMENTS/DETAILS FURNISHED BY THE ASSESSEE. ONLY B ECAUSE THE ASSESSEE AGREED TO THE ADDITIONS BECAUSE OF THE DEE MING PROVISIONS IT CANNOT BE CONSTRUED TO BE FILING OF I NACCURATE PARTICULARS ON THE PART OF THE ASSESSEE. THE ASSESS EE AGREED TO ADDITION ON THE BASIS OF VALUATION MADE BY THE STAM P VALUATION AUTHORITY CANNOT BE A CONCLUSIVE PROOF THAT THE SAL E CONSIDERATION AS PER THE AGREEMENT IS SEEMED TO BE INCORRECT AND WRONG. IN VIEW OF THESE FACTS WE ARE OF THE CON SIDERED VIEW THAT PENALTY CANNOT BE LEVIED ON THE BASIS OF DEEMI NG PROVISION. WE ACCORDINGLY DELETE THE SAME.' IN VIEW OF THE ABOVE DISCUSSION, PARTICULARLY THE D ECISION OF HON'BLE AHMEDABAD ITAT IN SHRI CHIMANLAL MANILAL PATEL (SUPRA) THE PENALTY U/S 271(1)(C) OF THE ACT CANNOT BE LEVIED ON ADDITI ON U/S 50C OF THE ACT. THEREFORE, PENALTY U/S 271(1 )(C) REFERABLE TO STCG OF RS. 38,44,204/- CANNOT BE SUSTAINED AND THE SAME IS DELETED. 5.11 AS FAR AS THE PENALTY U/S 271(1)(C) ON UNDISCLOSED INTEREST INCOME OF RS.82,558/- IS CONCERNED, THE ASSESSING OFFICER NOTICED THAT AS PER FORM 26AS AND ITS, THE ASSESSEE HAD RECEIVED INTERE ST INCOME OF RS.5,71,385/- DURING THE YEAR, AGAINST WHICH, THE A SSESSEE HAD DISCLOSED INTEREST OF RS.3,44,849/-. AFTER CONSIDERING DUPLIC ATION OF INCOME, THE ASSESSING OFFICER HELD THAT A SUM OF RS. 82,588/- W AS NOT DISCLOSED BY THE ASSESSEE IN HIS RETURN OF INCOME AND THE SAME W AS ADDED TO HIS TOTAL INCOME. THE ADDITION WAS CONFIRMED BY CIT(A). THE ASSESSEE'S CONTENTION THAT OUT OF RS.82,588/-, A SUM OF RS.49, 171/- BELONGS TO THE ASSESSEE AND REST OF THE INTEREST IS REFLECTED IN T HE ACCOUNTS OF ASHWINKUMAR RAVJIBHAI PATEL (HUF) IS NOT ACCEPTABLE IN ITS ENTIRETY, AS THE ASSESSING OFFICER HAS CONSIDERED THE DUPLICATIO N OF INCOME. ITA NO.572/AHD/ 2016 ITO VS. SHRI ASHWINBHAI RAOJIBHAI PATEL ASST.YEAR 2010-11 - 4 - HOWEVER, THE ASSESSEE WAS ABLE TO ESTABLISH THAT SU MS OF RS.6,319/- AND RS.5,872/-, APPEARING IN ASSESSEE'S FORM 26AS, WERE REFLECTED IN FORM 16A OF ASHWINKUMAR RAVJIBHAI PATEL (HUF) AND WERE O FFERED TO TAX IN THE HANDS OF THE SAID HUF AND THE SAME CANNOT BE CO NSTRUED AS ASSESSEE'S INCOME. IN VIEW OF THIS, PENALTY U/S 271 (1)(C) REFERABLE TO THE INTEREST INCOME OF RS.6,319/- AND RS.5,872/- FROM B ANK OF BARODA, CANNOT BE SUSTAINED AND THE SAME IS DELETED. BALANC E PENALTY U/S 271(1)(C) REFERABLE TO BALANCE OF THE UNDISCLOSED I NCOME IS UPHELD. THEREFORE, THE ASSESSEE PARTIALLY SUCCEEDS ON THESE GROUNDS OF APPEAL. 3. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD.CIT(A) HAS IGNORED THE FACT ON RECORD THAT T HE ASSESSEE HAS CHANGED THE INCOME HEAD I.E. INCOME FROM BUSINESS O R PROFESSION INSTEAD STCG FOR PAYING AX AT A LOWER RATE WHICH CL EARLY PROVES THIS CASE FURNISHING OF INACCURATE DETAILS AND LIAB LE FOR PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961. 3.1. LD.AR HAS REITERATED THE SUBMISSIONS WERE MAD E BEFORE THE AO AND LD.CIT(A) AND SUPPORTED THE ORDER OF LD.CIT(A). 3.2. BEFORE US, LD.SR.DR, ON THE OTHER HAND, SUPPOR TED THE ORDER OF AO. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) WHILE DELETING THE PENAL TY ON THE ADDITION OF STCGS HAS GIVEN A FINDING THAT IT WAS NOT A CASE OF CONCEALMENT OF INCOME NOR THE CASE FURNISHING OF INACCURATE PARTIC ULARS AND THAT ON THE ADDITIONS U/S.50C OF THE ACT, NO PENALTY CAN BE LEV IED AND FOR WHICH HE ITA NO.572/AHD/ 2016 ITO VS. SHRI ASHWINBHAI RAOJIBHAI PATEL ASST.YEAR 2010-11 - 5 - RELYING ON THE DECISION IN THE CASE OF COORDINATE B ENCH (ITAT AHMEDABAD) IN THE CASE OF SHRI CHIMANLAL MANILAL PA TEL VS. ACIT IN ITA NO.508/AHD/2010 DELETED THE PENALTY. AS FAR AS PENALTY ON UNDISCLOSED INTEREST INCOME IS CONCERNED, HE DELETE D THE PENALTY ON THE INTEREST INCOME OF RS.12,191/-, BY HOLDING THAT ASS ESSEE WAS ABLE TO ESTABLISH THAT THE AFORESAID SUMS WERE REFLECTED IN THE INCOME OF ASHWINKUMAR R.PATEL HUF AND HAS BEEN OFFERED TO TAX AND IT CANNOT BE CONSTRUED AS ASSESSEES INCOME. ON THE BALANCE INC OME OF RS.70,367/-, HE UPHELD THE PENALTY LEVIED. BEFORE US, REVENUE H AS NOT PLACED ANY MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF LD .CIT(A) AND, THEREFORE, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD .CIT(A). THUS, GROUND RAISED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED . THIS ORDER PRONOUNCED IN OPEN COURT ON 24/05/2016 SD/- SD/- ( ) () (SHAILENDRA KUMAR YADAV) ( ANIL CHATUR VEDI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 24/ 05 /2016 5..,.../ T.C. NAIR, SR. PS ITA NO.572/AHD/ 2016 ITO VS. SHRI ASHWINBHAI RAOJIBHAI PATEL ASST.YEAR 2010-11 - 6 - !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. &) / THE APPELLANT 2. *+&) / THE RESPONDENT. 3. 678 9 / CONCERNED CIT 4. 9 ( ) / THE CIT(A)-5, VADODARA 5. :;<*78 , 78 2 , 6 / DR, ITAT, AHMEDABAD 6. <>?. / GUARD FILE. / BY ORDER, +:* //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 18.5.16 (DICTATION-PAD 6+ PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22.5.16 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.24.5.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 24.5.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER