The Asstt. Commissioner of Income Tax, Amritsar. V. Sh. Jagdish Sawhney, BATALA

ITA 604/ASR/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7142 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-07-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 19-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ GARG LD
• Assessee Lawyers: ASHWANI KALIA LD
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUN AL AMRITSAR BENCH, AMRITSAR BEFORE SH. VIKRAM SINGH YADAV , ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.604(ASR)/2015 ASSESSMENT YEAR:2007-08 ASST. COMMISSIONER OF INCOME TAX, CIRCLE-II, AMRITSAR VS. SH. JAGDISH SAWHNEY 83, URBAN ESTATE, BATALA [PAN:ABPPS 9818N] (APPELLANT) (RESPONDENT) APPELLANT BY: SH. DHEERAJ GARG (LD. DR) RESPONDENT BY: SH. ASHWANI KALIA (LD. CA) DATE OF HEARING: 24.07.2019 DATE OF PRONOUNCEMENT: 26.07.2019 ORDER PER N.K.CHOUDHRY, JM: THIS IS AN APPEAL FILED BY THE REVENUE DEPARTMENT AG AINST THE ORDER DATED 18/08/2015 IMPUGNED HEREIN PASSED BY THE LD. CIT(A)-1, AMRITSAR WHEREBY THE LD. CIT(A) DELETED TH E PENALTY OF RS.79,33,195/- IMPOSED BY THE ASSESSING OFFICER VIDE IT S ORDER DATED 29/03/2014. 2. THE BRIEF FACTS OF THE CASE ARE THAT IN THE INSTANT CASE THE ASSESSEE WAS ALSO ONE OF THE MEMBER OF THE PUNJABI CO- OPERATIVE HOUSE BUILDING SOCIETY LTD., MOHALI AND OWNS 1000 SQ. YARDS OF LAND IN THE SOCIETY HAVING SOLD THE SAME THROUG H TRIPARTITE JOINT DEVELOPMENT AGREEMENT WITH M/S. HASH BUILDERS (P) LTD., CHANDIGARH AND M/S TATA HOUSING DEVELOPMENT ITA NO.604 /ASR/2015 (A.Y.2007-08) ACIT VS. JAGDISH SAWHNE Y 2 COMPANY LTD., MUMBAI ON 25.02.2007 FOR A TOTAL CONSID ERATION OF RS.1,65,00,000/- AS WELL AS TWO FLATS OF 2250 SQ. FEE T EACH. THE ASSESSING OFFICER HELD THAT BY RESULT OF TRANSFER OF ASSESSEES CAPITAL ASSETS, THE TOTAL AMOUNT OF RS.3,65,50,000/- (RS.1,65,00,000/- + RS.2,02,50,000/-) THE VALUE OF TW O FLATS AS ACCRUED TO THE ASSESSEE DURING THE ASST. YEAR 2007-08 FOR THE PURPOSES OF SEC.45 R.W.SEC.48 OF THE INCOME TAX ACT, 1961 (HEREIN AFTER CALLED AS THE ACT) AND THEREFORE, THE SAME IS TAXABLE IN HANDS OF THE ASSESSEE UNDER THE HEAD CAPITAL G AIN. CONSEQUENTLY THE A.O IN THE PENALTY PROCEEDINGS, VIDE ITS ORDER DATED 29/03/2014 IMPOSED THE PENALTY OF RS.79,33,195/ - AS 100% OF THE TAX SOUGHT TO BE EVADED. THE SAID ADDITIO N TRAVELLED UP TO HIGH COURT AND THE HONBLE HIGH COURT IN THE CASE OF C.S. ATWAL VS. CIT, LUDHIANA IN ITA NO.200 OF 2013 (O&M) DATED 22/07/2015 HELD THAT TAX IS LIABLE TO BE PAID ONLY O N THE AMOUNT WHICH IS ACTUALLY RECEIVED IN THE YEAR UNDER CONSIDERATIO N. CONSEQUENTLY, THE ASSESSING OFFICER VIDE ITS ORDER DATED 22/09/2015 WHILE GIVING APPEAL EFFECT TO THE DECISION OF THE JURISDICTIONAL HIGH COURT, COMPUTED THE LONG TERM CAPITA L GAIN AT RS.51,47,386/- ONLY. 3. ON APPEAL BEFORE THE LD. CIT(A) THE SAID AMOUNT OF RS.51,47,386/- WAS REDUCED TO RS.24,00,000/- ONLY. THER EFORE, IT WAS SUBMITTED BY THE MR. ASHWANI KALIA, LD. CA THA T ULTIMATELY THE ADDITION OF RS.24 LACS HAS BEEN SUSTAINED AND IF THE PENALTY IS TO BE LEVIED ON 24 LACS, THEN IT WILL NOT BE MORE T HAN 8 LACS ONLY. THE REVENUE DEPARTMENT FAIRLY ACCEPTED THE FACTS AND CIRCUMSTANCES OF THE CASE AS DEMONSTRATED BY MR. KALIA AS ALSO APPEARS FROM THE RECORDS. CONSIDERING THE FACTS THAT THE LD. ITA NO.604 /ASR/2015 (A.Y.2007-08) ACIT VS. JAGDISH SAWHNE Y 3 CIT(A) VIDE ITS ORDER DATED 31/10/2017 HAS ALREADY RE DUCED THE ADDITION TO RS.24 LACS ONLY AND PENALTY IF ANY TO BE L EVIABLE THEN IT CAN BE AROUND 8 LACS ONLY WHICH WOULD BE UNDER THRE SHOLD LIMIT OF RS.20 LACS AS PRESCRIBED BY THE CBDT CIRCULAR NO.03 OF 2018, DATED 11.07.2018., HENCE, THE INSTANT APPEAL IS LIAB LE TO BE DISMISSED AND CONSEQUENTLY STANDS DISMISSED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE DEPA RTMENT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.07.2019. SD/- SD/- ( VIKRAM SINGH YADAV ) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED: 26.07.2019 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. JAGDISH SAWHNEY, 83, URBAN ESTATE, BATALA (2) THE ASST. CIT, CIRCLE-II, AMRITSAR (3) THE CIT(A)-1, AMRITSAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER