Income tax Officer, Pune V. Ramesh M.Gandhi, Pune

ITA 597/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5512 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 10-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VILESH DOLYA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E BEFORE SHRI R.S.SYAL, VP AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO. 597/PUN/2017 / ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, WARD- 5(1), PUNE. .... / APPELLANT / V/S. SHRI RAMESH M. GANDHI, 502-B, SHAN GANGA SOCIETY, SALISBURY PARK, GULTEKDI, PUNE-411 037 PAN : AFLPK5081M / RESPONDENT ASSESSEE BY : SHRI VILESH DOLYA REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 29.01.2019 / DATE OF PRONOUNCEMENT : 29.01.2019 / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE REVENUE EMANATES FROM THE ORDER OF LD. CIT(APPEALS)-8, PUNE DATED 14.12.2016 FOR THE ASSESSMENT YEAR 2009-10 AS PER GROUNDS OF APPEAL ON RECORD. 2. THE SOLITARY GRIEVANCE OF THE REVENUE IS THE DELETION OF PENALTY LEVIED U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT). 2 ITA NO. 597/PUN/2017 A.Y.2009-10 3. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE AP PRAISED THE BENCH THAT THE QUANTUM ADDITION OF RS.1,10,43,000/- WHICH WAS THE BASIS FOR IMPOSING THE PENALTY THAT QUANTUM ITSELF HAS BEEN DELETED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL, PUNE AND THEREFORE, PENALTY LEVIED U/ S.271(1)(C) OF THE ACT DOES NOT HAVE ANY LEGS TO STAND AND THEREFORE, LIABLE TO BE DELETE D. 4. THE LD. DR FAIRLY CONCEDED TO THE ARGUMENTS OF THE LD. AR. 5. WE HAVE PERUSED THE CASE RECORDS AND CONSIDERED T HE JUDICIAL PRONOUNCEMENT PLACED BEFORE US. WE FIND THAT IN ASSESSEE S OWN CASE FOR ASSESSMENT YEAR 2009-10 I.E. QUANTUM APPEAL, WITH REGARD TO ADDITION OF RS.1,10,43,000/- WHICH WAS CONFIRMED BY THE LD. CIT(APPEALS) O N ACCOUNT OF ALLEGED PAYMENT OF ON-MONEY FOR PURCHASE OF FLATS. THE CO -ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.1132/PN/2013 FOR ASSESSMENT YEAR 2009-10 HAS HELD AS FOLLOWS: 7. WE FIND THAT THERE ARE SEVERAL INFIRMITIES IN T HE FINDINGS OF AUTHORITIES BELOW IN MAKING ADDITION. THE AUTHORITIES BELOW ARE PROBABLY CARRIED AWAY BY THE STATEMENT OF SMT. MEGHA DEEPAK KELKAR WITHOUT CONSIDERING THE ENTIRE FACTS OF THE CASE. THE LD. AR HAS POINTED TH AT EXCEPT FOR IN THE CASE OF ASSESSEE ADDITION HAS NOT BEEN MADE IN THE HANDS OF OTHER PERSONS WHOSE NAMES APPEAR IN THE COMPUTER SHEET SEIZED DURING SU RVEY. THE LD. DR HAS NOT BEEN ABLE TO REBUT THE CONTENTIONS OF THE ASSES SEE THAT NO ADDITION HAS BEEN MADE IN THE CASE OF OTHER PERSONS VIZ. MR. SAT ISH B. SHAH, MR. PRADIP C. MUTHA AND MR. JAIN WHO ARE SIMILARLY PLACED. FUR THER, WE OBSERVE THAT ANOTHER SHEET SEIZED WHICH IS PART OF PAGE 5 OF BUN DLE NO. 1 THAT ALLEGEDLY GIVES THE DETAIL OF INVESTMENT MADE BY MR. SATISH B . SHAH AND MR. RAMESH M. GANDHI SHOW TWO DIFFERENT RATES. HOWEVER, THERE IS NO FURTHER EVIDENCE TO LINK THE CALCULATIONS TO THE PURPORTED ON-MONEY PAI D BY THE ASSESSEE. THE ADDITION HAS BEEN MADE MERELY ON THE BASIS OF PROBA BILITIES AND THE STATEMENT OF MEGHA DEEPAK KELKAR WITHOUT THERE BEIN G ANY CORROBORATIVE EVIDENCE. THE CALCULATION SHEET AT PAGE 5 OF BUNDLE NO. 1 DOES NOT SHOW IN ANY MANNER THAT 'ON-MONEY' HAS BEEN PAID BY THE ASS ESSEE TO DARODE JOG BUILDERS FOR PURCHASE OF FLATS. ON THE CONTRARY, A PERUSAL OF SUBSEQUENT AGREEMENT FOR SALE OF FLAT NO.103 SUPPORTS THE CASE OF ASSESSEE. THE CONSIDERATION SETTLED BETWEEN ASSESSEE AND DARODE J OG BUILDERS IN RESPECT OF FLAT NO. 103 WAS IN FACT ITA NO.1132/PN/2013, A. Y. 2009-10 THE ONLY PRICE AND THERE IS NO REFERENCE OF ANY PREMIUM IN T HE AGREEMENT FOR RE-SALE OF FLAT NO. 103. HAD THERE BEEN ANY PAYMENT OF ON-M ONEY OR PREMIUM THE SALE PRICE MENTIONED IN THE AGREEMENT WOULD HAVE BE EN MUCH MORE. THE SAID AGREEMENT IS REGISTERED. A PERUSAL OF REGISTRA TION DOCUMENT SHOWS THAT VALUE OF PROPERTY FOR STAMP DUTY PURPOSE IS RS.91,0 1,340/-. THE ASSESSEE COULD MANAGE TO SALE THE FLAT FOR A CONSIDERATION O F RS.1,10,14,250/- I.E. HIGHER THEN THE STAMP VALUE OF FLAT. THIS SHOWS THA T THE ASSESSEE HAS SOLD 3 ITA NO. 597/PUN/2017 A.Y.2009-10 THE FLAT AT THE MARKET PRICE. IN SUCH CIRCUMSTANCES PAYMENT OF 'ON-MONEY' IS HIGHLY IMPROBABLE. THE DOCUMENTS ON RECORD DOES NOT SUGGEST IN ANY MANNER PAYMENT OF 'ON-MONEY' BY THE ASSESSEE. THUS, IN VIEW OF OUR ABOVE OBSERVATIONS GROUND NO. 1 RAISED IN THE APPEAL OF T HE ASSESSEE IS ALLOWED. THAT WHEN THE QUANTUM BASED ON WHICH THE PENALTY PROC EEDINGS WERE INITIATED ITSELF HAS BEEN DELETED, THEN THERE IS NO OPPORTUN ITY LEFT TO THE REVENUE TO IMPOSE PENALTY U/S.271(1)(C) OF THE ACT ON THE A SSESSEE. THE LD. CIT(APPEALS) WHILE GRANTING RELIEF TO THE ASSESSEE, HAS PLACED RELIANCE ON THE AFORESAID DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNA L, PUNE. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(APP EALS) WHICH IS THEREBY, UPHELD. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 29 TH DAY OF JANUARY, 2019. SD/- SD/- R.S.SYAL PART HA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 29 TH JANUARY, 2019. SB !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-8, PUNE. 4. THE PR. CIT-3, PUNE. 5. '#$ %%&' , ( &' , )*+ , / DR, ITAT, B BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 4 ITA NO. 597/PUN/2017 A.Y.2009-10 DATE 1 DRAFT DICTATED ON 29 .01.2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 29 .01 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER