Sh. Sudesh Kumar Chaudhary, Ghaziabad V. ITO, Ghaziabad

ITA 5751/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3393 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 14-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 143(3); 142(1); 139(5); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. G.D.AGARWAL, PRESIDEN T AND SH. KUL BHARAT, JUDICIAL M EMBER ITA NO. 5751/DEL./2015 : A SSTT. YEAR : 2010-11 SUDESH KUMAR CHAUDHARY R-6/12A, RAJ NAGAR, GHAZIABAD PAN : ABYPC0246R VS ITO WARD-2(3), GHAZIABAD (APPELLANT) (RESPONDENT) ITA NO. 5752/DEL./2015 : ASSTT. YEAR : 2010-11 SUNITA DEVI R-6/12-A, RAJ NAGAR, GHAZIABAD PAN : AEUPD2693E VS ITO WARD-2(3), GHAZIABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ANOOP SHARMA, ADV., S H. SANJAY PARASHAR, ADV. RESPONDENT BY : SH. KAUSHLENDRA TIW ARI, SR. DR DATE OF HEARING : 22.02.2018 DATE OF PRONOUNCEMENT : 23.02.2018 ORDER PER KULBHARAT, J.M. THESE TWO APPEALS BY DIFFERENT ASSESSEES AGAINST THE DIFFERENT ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)- GHAZIABAD BATH DATED 06.08.2015. SINCE THE BOTH APPEALS HAVE IDENTICAL GROUNDS AND ARISE FROM THE SAME ITA NO.5751,5752/DEL/2015 2 TRANSACTION. THE APPEALS WERE TAKEN UP TOGETHER AND ARE BEING DISPOSED OF BY WAY OF A CONSOLIDATED ORDER. 2. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ITA NO. 5752/DEL/2015 MAY BE TAKEN UP FIRST. LD. DR HAS NO OBJECTION, THEREFO RE, THE ITA NO. 5752/DEL/2015 IS TAKEN UP FIRST ADJUDICATION. FIRST WE TAKE UP ITA NO. 5752/DEL./2015 TO ASSESSME NT YEAR 2010-11. 3. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL :- THAT THE LD. CIT(A) ERRED ON FACTS AND CIRCUMSTANC ES OF THE CASE AND IN LAW IN BRUSHING ASIDE THE LEGAL PROPOSITION THAT TH E REVISED COMPUTATION CANNOT BE IGNORED WITH REFERENCE TO SECTIONS 139(1), 139(4 ) AND 139(5) OF I.T. ACT ON TECHNICALITIES. THAT THE LD. CIT(A) ALSO ERRED IN LAW AND ON FACTS IN OVER RULING/OVER LOOKING VARIOUS SUPPORTIVE JUDICIAL PRONOUNCEMENTS IN A SUMMARY, CURSORY AND CRYPTIC MANNER WITHOUT LEGALLY VALID REASONS/ COMME NTS. THAT THE LD. CIT(A) FURTHER ERRED IN LAW AND ON FA CTS IN DISCARDING THE GENUINE AND REASONABLE PLEA OF THE APPELLANT, HAVIN G ZERO KNOWLEDGE OF COMPLICATED TAX LAW, THAT THE INFORMATION REGARDING SALE OF PROPERTY WAS NOT ELICITED AT THE TIME OF PREPARATION OF RETURN BY ER STWHILE LD. COUNSEL/ CHARTERED ACCOUNTANT. THAT IN DOING SO, THE LD. CIT(A) FAILED TO APPRECI ATE THAT THERE WAS NO MAL INTENTION IN WITHHOLDING THE SAID INFORMATION, AS ITS DISCLOSURE WOULD HAVE ENABLED THE APPELLANT TO CLAIM EXEMPTION FROM CAPIT AL GAIN TAX AS PER LAW, IN THE RETURN ITSELF. THAT WITHOUT PREJUDICE TO ABOVE, LD. CIT(A) ALSO E RRED IN LAW AND ON FACTS IN IGNORING THE SERIOUS VIOLATION OF AUDI- AL TERM RULES AND CONTRAVENTION OF PROVISIONS OF SECTION 274(1) OF I.T. ACT BY THE LD. A.O, EVEN THOUGH IT WAS VEHEMENTLY AGITATED DURING APPELLATE PROCEEDINGS. THE LIKEWISE, THE LD. CIT(A) ERRED IN LAW AND ON F ACTS IN BRUSHING ASIDE THE FAILURE ON THE PART OF LD. A.O TO RECORD HIS SA TISFACTION, A PREREQUISITE FOR INITIATION OF PENALTY PROCEEDING IN THE ASSESSMENT ORDER. ITA NO.5751,5752/DEL/2015 3 THAT IN VIEW OF ABOVE GLARING LEGAL LAPSES/ LACUNE A, THE IMPUGNED FIRST APPELLATE ORDER BASED ON ILLOGICAL AND UNREASONABLE GROUNDS IS LIABLE TO BE QUASHED IN THE INTEREST OF EQUITY AND NATURAL JUSTI CE. 4. FACTS IN BRIEF ARE THAT THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143(3) OF THE INC OME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED V IDE ORDER DATED 14.12.2012. 5. THE ASSESSING OFFICER DURING THE COURSE OF ASSES SMENT PROCEEDINGS NOTICED THAT THE ASSESSEE JOINTLY WITH HER HUSBAND SOLD A PROPERTY AND CAPITAL GAIN ARISING THERE FROM WAS NOT DISCLOSED IN HER RE TURN OF INCOME. THEREFORE, THE AO MADE ADDITION OF THE CAPITAL GAIN ARISING FR OM THE TRANSFER OF THE CAPITAL ASSET AND INITIATED THE PENALTY PROCEEDINGS U/S. 27 1(1)(C) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER IMPOSED PENALTY ON THE AMOUNT OF CAPITAL GAIN WHICH WAS NOT DISCLOSED BY THE ASSESSEE. AGAIN ST THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO AFTER CON SIDERING THE SUBMISSIONS OF THE ASSESSEE CONFIRMED THE PENALTY. AGGRIEVED BY TH IS THE ASSESSEE PREFERRED THE PRESENT APPEAL. 6. EFFECTIVE GROUND IN THIS APPEAL IS AGAINST THE C ONFIRMATION OF PENALTY. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INITIATING THE PENALTY AND IMPOSING TH E SAME. HE SUBMITTED THAT THE AUTHORITIES BELOW FAILED TO APPRECIATE THE FACT IT WAS THE ASSESSEE WHO IN RESPONSE TO THE NOTICE U/S 142(1) OF THE ACT INFORM ED ABOUT THE SALE OF PROPERTY AND OFFERED THE LONG TERM CAPITAL GAIN FOR TAXATION . HE SUBMITTED IT WAS NOT UPON THE DETECTION MADE BY THE ASSESSING OFFICER, R ATHER IT WAS UPON VOLUNTEER DISCLOSURE BY THE ASSESSEE DURING THE COURSE OF ASS ESSMENT PROCEEDINGS. HE, FURTHER CONTENDED THAT NON-DISCLOSURE INTO RETURN O F INCOME WAS A BONA FIDE MISTAKE. HE RELIED UPON THE JUDGMENT OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 TO BUTTRESS ITA NO.5751,5752/DEL/2015 4 THIS ARGUMENT. HE FURTHER SUBMITTED THAT THE NOTICE U/S 271(1)(C) OF THE ACT IS DEFECTIVE SINCE IT DOES NOT SPECIFY THE CHARGE. ON THE CONTRARY LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE AUTHORIT IES BELOW. HE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. 7. WE HAVE HEARD THE RIVAL CONTENTION PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE UNDISPUTED FACT IN THIS CASE ARE THAT DURING THE YEAR UNDER AP PEAL, THE ASSESSED HAD TRANSFERRED HER SHARE INTO A CAPITAL ASSET AND DID NOT DISCLOSE THE CAPITAL GAIN ARISING THERE FROM WHILE FILING THE RETURN OF INCOM E. THE MAIN CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE TRANSACTIO N WAS NOT DETECTED BY THE REVENUE, IT WAS VOLUNTEER DISCLOSURE OF THE ASSESSE E DURING THE ASSESSMENT PROCEEDINGS. IF THIS CONTENTION OF THE ASSESSEE IS ACCEPTED IT WOULD SET A WRONG PRECEDENCE AS EVERY ASSESSEE WOULD TAKE SUCH PLEA. WE, THEREFORE, REJECT THE SAME. ANOTHER ARGUMENT OF THE LD. COUNSEL FOR THE A SSESSEE IS THAT THE AO HAS NOT SPECIFIED THE CHARGE. WE HAVE PERUSED THE NOTIC E DATED 20.12.2012 ISSUED U/S 274 READ WITH SECTION 271(1)(C) OF THE ACT. THE RELEVANCE CONTAINS TO THE SAME ARE REPRODUCED AS PAPER BOOK PAGE 5 READS AS U NDER :- HAVE CONCEALED THE PARTICULARS OF YOUR INCOM E AND HAVE FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. FROM THE ABOVE, IT IS EVIDENT THAT THE AO HAS CHARG ED THE ASSESSEE FOR TWIN DEFAULTS. UNDER THE FACTS OF THE PRESENT C ASE, SAME IS RIGHTLY DONE AS THE ASSESSEE HAS CONCEALED THE INCOME AROSE OUT OF TRANSFER OF CAPITAL ASSET AND FAILED TO DISCLOSE THE CAPITAL GAIN IN ITS RETURN OF INCOME THAT TANTAMOUNT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME. WE, THEREFORE, DO NOT SEE ANY INFIRMITY INTO THE ORDER OF THE AUTHORITIES BELOW. THE GROUNDS RAISED IN THIS APPEAL ARE DISMISSED. NOW WE TAKE UP ITA NO. 5751/DEL/2015 TO ASSESSMENT YEAR 2010-11 ITA NO.5751,5752/DEL/2015 5 9. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL :- THAT THE LD. CIT(A) ERRED ON FACTS AND CIRCUMSTAN CES OF THE CASE AND IN LAW IN BRUSHING ASIDE THE LEGAL PROPOSITION THAT THE REVISED COMPUTATION CANNOT BE IGNORED WITH REFERENCE TO SEC TIONS 139(1), 139(4) AND 139(5) OF I.T. ACT ON TECHNICALITIES. THAT THE LD. CIT(A) ALSO ERRED IN LAW AND ON FACTS IN OVER RULING/OVER LOOKING VARIOUS SUPPORTIVE JUDICIAL PRONOUNCEMENTS IN A SUMMARY, CURSORY AND CRYPTIC MANNER WITHOUT LEGALLY VALID REASONS/ C OMMENTS. THAT THE LD. CIT(A) FURTHER ERRED IN LAW AND ON FA CTS IN DISCARDING THE GENUINE AND REASONABLE PLEA OF THE APPELLANT, H AVING ZERO KNOWLEDGE OF COMPLICATED TAX LAW, THAT THE INFORMATION REGARDING SALE OF PROPERTY WAS NOT ELICITED AT THE TIME OF PREPARATION OF RETURN BY ER STWHILE LD. COUNSEL/ CHARTERED ACCOUNTANT. THAT IN DOING SO, THE LD. CIT(A) FAILED TO APPRECI ATE THAT THERE WAS NO MAL INTENTION IN WITHHOLDING THE SAID INFORMATION, AS ITS DISCLOSURE WOULD HAVE ENABLED THE APPELLANT TO CLAIM EXEMPTION FROM CAPIT AL GAIN TAX AS PER LAW, IN THE RETURN ITSELF. THAT WITHOUT PREJUDICE TO ABOVE, LD. CIT(A) ALSO E RRED IN LAW AND ON FACTS IN IGNORING THE SERIOUS VIOLATION OF AUDI- AL TERM RULES AND CONTRAVENTION OF PROVISIONS OF SECTION 274(1) OF I.T. ACT BY THE LD. A.O, EVEN THOUGH IT WAS VEHEMENTLY AGITATED DURING APPELLATE PROCEEDINGS. THE LIKEWISE, THE LD. CIT(A) ERRED IN LAW AND ON F ACTS IN BRUSHING ASIDE THE FAILURE ON THE PART OF LD. A.O TO RECORD HIS SATISFACTION, A PREREQUISITE FOR INITIATION OF PENALTY PROCEEDING I N THE ASSESSMENT ORDER. THAT IN VIEW OF ABOVE GLARING LEGAL LAPSES/ LACUNE A, THE IMPUGNED FIRST APPELLATE ORDER BASED ON ILLOGICAL AND UNREAS ONABLE GROUNDS IS LIABLE TO BE QUASHED IN THE INTEREST OF EQUITY AND NATURAL JU STICE. 10. AT THE OUTSET, THE RESPECTIVE LD. REPRESENTATIV ES OF THE PARTIES HAVE ADOPTED THE SAME ARGUMENTS AS WERE ADDRESSED IN ITA NO. 5752/DEL/2015. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, SINCE THE FA CTS AND THE GROUNDS ARE ITA NO.5751,5752/DEL/2015 6 IDENTICAL AS IN ITA NO. 5752/DEL/2015. WE HAVE DECI DED THE IDENTICAL GROUNDS OF APPEAL IN ITA NO. 5752/DEL/2015 BY HOLDING AS UN DER :- 7. WE HAVE HEARD THE RIVAL CONTENTION PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE UNDISPUTED FACT IN THIS CASE ARE THAT DURING THE YEAR UNDER AP PEAL, THE ASSESSED HAD TRANSFERRED HER SHARE INTO A CAPITAL ASSET AND DID NOT DISCLOSE THE CAPITAL GAIN ARISING THERE FROM WHILE FILING THE RETURN OF INCOM E. THE MAIN CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE TRANSACTIO N WAS NOT DETECTED BY THE REVENUE, IT WAS VOLUNTEER DISCLOSURE OF THE ASSESSE E DURING THE ASSESSMENT PROCEEDINGS. IF THIS CONTENTION OF THE ASSESSEE IS ACCEPTED IT WOULD SET A WRONG PRECEDENCE AS EVERY ASSESSEE WOULD TAKE SUCH PLEA. WE, THEREFORE, REJECT THE SAME. ANOTHER ARGUMENT OF THE LD. COUNSEL FOR THE A SSESSEE IS THAT THE AO HAS NOT SPECIFIED THE CHARGE. WE HAVE PERUSED THE NOTIC E DATED 20.12.2012 ISSUED U/S 274 READ WITH SECTION 271(1)(C) OF THE ACT. THE RELEVANCE CONTAINS TO THE SAME ARE REPRODUCED AS PAPER BOOK PAGE 5 READS AS U NDER :- HAVE CONCEALED THE PARTICULARS OF YOUR INCOM E AND HAVE FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 8. FROM THE ABOVE, IT IS EVIDENT THAT THE AO HAS CHARGED THE ASSESSEE FOR TWIN DEFAULTS. UNDER THE FACTS OF THE PRESENT CASE, SAME IS RIGHTLY DONE AS THE ASSESSEE HAS CONCEALED THE INCOME AROSE OUT OF TRAN SFER OF CAPITAL ASSET AND FAILED TO DISCLOSE THE CAPITAL GAIN IN ITS RETURN O F INCOME THAT TANTAMOUNT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME. WE, THEREFORE, DO NOT SEE ANY INFIRMITY INTO THE ORDER OF OF THE AUTHORITIES BELO W. THE GROUNDS RAISED IN THIS APPEAL ARE DISMISSED. FOR THE SAME REASONING THE GROUNDS RAISED IN THIS APPEAL ARE ALSO DISMISSED. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO. 5751/DEL/2015 AND ITA NO. 5752/DEL/2015 ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 23/0 2/2018). SD/- SD/- (G.D.AGARWAL) (KUL BHARAT) PRESIDENT JUDICIAL MEMBER DATED: 23/ 02/2018 *BINITA* ITA NO.5751,5752/DEL/2015 7 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS) 5.DR: ITAT ASSISTANT REGIS TRAR DATE INITIAL 1. DRAFT DICTATED ON 22.02.2018 2. DRAFT PLACED BEFORE AUTHOR 22.02.2018 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 23.02.2018 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.