DCIT 20(2), MUMBAI V. PATEL PLASTIC CORPORATION, MUMBAI

ITA 6451/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100767 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 01-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J PREMANAND
• Assessee Lawyers: SHRI ANIMESH SINGI
• Keywords: Sale consideration of property below Jantri Value
• Section: 147; 143(3); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI. BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO 6451/MUM/2013 ASSESSMENT YEAR: - 2003-04 THE DY.CIT 20(2), 612, PIRAMAL CHAMBERS, LALBAUG, MUMBAI. VS. M/S. PATEL PLASTIC CORPORATION, 612, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400012. PAN/GIR NO. AAA FP 4659G ( APPELLANT ) ( RESPONDENT ) ORDER PER G.S. PANNU, AM: THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGA INST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3 1, MUMBAI DATED 30/08/2013, WHICH IN-TURN HAS ARISEN FROM PEN ALTY ORDER APPELLANT BY SHRI PREMANAND J RE SPONDENT BY SHRI ANIMESH SINGI DATE OF HEARING 10 .06.2015 DATE OF PRONOUNCEMENT 19 /08/ 2015 2 ITA NO 6451/MUM/2013 ASSESSMENT YEAR: - 2003-04 PAGE 2 OF 5 PASSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF TH E INCOME TAX ACT, 1961( IN SHORT THE ACT) DATED 29/03/2010 PERTAIN ING TO ASSESSMENT YEAR 2003-04. 2. IN THIS APPEAL, THE SOLITARY ISSUE RELATES TO A PENALTY OF RS.3,06,863/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE ACT. IN BRIEF, RELEVANT FACTS ARE THAT THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHIP FIRM ENGAGED IN T HE BUSINESS OF MANUFACTURING OF PLASTIC MOULDED ITEMS LIKE TOILET SEATS, CABINETS, MIRROR FRAMES, ETC. IN AN ASSESSMENT FINALIZED BY THE ASSESSING OFFICER UNDER SECTION 147 R.W.S. 143(3) DATED 19/0 7/2007, AN ADDITION OF RS.8,35,000/- WAS MADE ON ACCOUNT OF U NDER-REPORTING OF SHORT TERM CAPITAL GAIN ON SALE OF PLOT. ACCORD ING TO THE ASSESSING OFFICER, ON AN APPLICATION OF SECTION 50 C OF THE ACT, THE SHORT TERM CAPITAL GAIN WAS COMPUTABLE AT A FIGURE HIGHER THAN THE RETURNED INCOME BY AN AMOUNT OF RS.8,35,000/-. SU BSEQUENTLY, THE ASSESSING OFFICER ALSO HELD THE ASSESSEE GUILTY OF CONCEALMENT OF INCOME QUA THE AFORESAID AMOUNT WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT. 3. ON APPEAL BY THE ASSESSEE, CIT(A) HAS DELETED THE PENALTY ON THE GROUND THAT THERE WAS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT. AS PER CIT(A) THE DI FFERENCE IN COMPUTATION OF CAPITAL GAIN WAS MERELY ON APPLICATI ON OF THE 3 ITA NO 6451/MUM/2013 ASSESSMENT YEAR: - 2003-04 PAGE 3 OF 5 DEEMING FICTION OF SECTION 50C OF THE ACT, WHICH D ID NOT GIVE RISE TO PENALTY UNDER SECTION 271(1)(C) OF THE ACT. AGAINS T SUCH DELETION OF PENALTY BY THE CIT(A), REVENUE IS IN APPEAL BEFORE US. 4. BEFORE US, AT THE TIME OF HEARING LD. REPRESENTA TIVE FOR THE ASSESSEE POINTED OUT THAT SUBSEQUENT TO THE IMPUGN ED ORDER OF THE CIT(A), THE TRIBUNAL IN THE CASE OF THE ASSESSEE FO R THE INSTANT ASSESSMENT YEAR HAS QUASHED THE INITIATION OF PROCE EDINGS UNDER SECTION 147 OF THE ACT. IN THIS REGARD, COPY OF TH E ORDER OF THE TRIBUNAL IN ITA NO.914/MUM/2009 FOR A.Y.2003-04 DAT ED 16/7/2014 HAS BEEN PLACED ON RECORD, IN TERMS O F WHICH IT IS CANVASSED THAT THE ASSESSMENT ORDER DATED 19/12/200 7 (SUPRA), WHICH HAS FORMED THE BASIS FOR LEVY OF INSTANT PE NALTY, HAS ALREADY BEEN SET ASIDE. 4. THE AFORESAID FACTUAL MATRIX HAS NOT BEEN DISPUT ED BY THE LD. DR APPEARING FOR THE REVENUE. AS A CONSEQUENCE, TH E VERY BASIS FOR WHICH THE PENALTY HAS BEEN LEVIED UNDER SECTION 271 (1)(C) OF THE ACT DOES NOT SURVIVE IN VIEW OF THE ORDER OF TRIBUNAL D ATED 16/7/2014 (SUPRA). FOR THE SAID REASON, WE HEREBY UPHOLD THE ULTIMATE CONCLUSION OF THE CIT(A) IN DELETING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT, ALBEIT ON A DIFFERENT GROUND . 4 ITA NO 6451/MUM/2013 ASSESSMENT YEAR: - 2003-04 PAGE 4 OF 5 5. RESULTANTLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19/08/2 015. SD/- SD/- ( AMIT S HUKLA ) (G.S. PANNU ) ( JUDICIAL MEMBER ) ( ACCOUNTANT MEMBER ) MUMBAI DATED 19/08/2015 VM. COPY TO: THE APPELLANT THE RESPONDENT THE CONCERNED CIT(A) THE CONCERNED CIT THE DR, CBENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI