ITO, Jaipur V. SMT. USHA MODI, Jaipur

ITA 662/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5593 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 25-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Section: 27

Judgement Text

ITA NO. 662/JP/2014 ITO, WARD- 1(1), JAIPUR VS. SMT . USHA MODI 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE:SHRI R.P.TOLANI, JM & SHRI VIKRAM SINGH YADA V, AM VK;DJ VIHY LA-@ ITA NO. 662/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE ITO WARD- 1(1), JAIPUR CUKE VS. SMT. USHA MODI 709, VIDHYADHAR KA RASTA,TRIPOLIA BAZAR, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACFPM 8556 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20/11/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /01/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER O F THE LD. CIT(A) I, JAIPUR DATED 15-07-2014 FOR THE ASSESSMENT YEAR 200 8-09 RAISING SOLITARY GROUND AS UNDER:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DEL ETING THE PENALTY OF RS. 25,44,425/- IMPOSED BY THE AO U/S 27 1(1)( C). ITA NO. 662/JP/2014 ITO, WARD- 1(1), JAIPUR VS. SMT . USHA MODI 2 2.1 AT THE OUTSET, THE LD. AR CONTENDS THAT THE REV ENUE HAS FILED THIS APPEAL IN MISCONCEPTION EXCEPT THE AMOUNT OF RS. 40 ,307/- IN QUANTUM ADDITION HAD BEEN DELETED BY ITAT, JAIPUR BENCH VID E ITS ORDER DATED 30-01- 2014 IN ITA NO. 200/JP/2012. THE LD. CIT(A) HAS ACC ORDINGLY DELETED THE PENALTY BY FOLLOWING OBSERVATION. 4. I HAVE CONSIDERED SUBMISSION OF THE APPELLANT AND HAVE ALSO GONE THROUGH THE PENALTY ORDER. IT IS NOTED THAT TH E PENALTY HAS BEEN LEVIED BY THE AO ON THE GROUND THAT THE APPELLANT WAS INVO LVED IN THE BUSINESS OF PURCHASE AND SALE OF LAND AS WELL AS SHARES AND THE INCOME SHOWN UNDER THE HEAD LONG TERM CAPITAL GAINS ON SALE OF LAND AND SH ORT TERM CAPITAL GAINS ON SALE OF EQUITY SHARES CANNOT BE TREATED AS CAP ITAL GAINS. IT IS HOWEVER, NOTED THAT THE ADDITION OF RS. 74,45,500/- HAS BEEN DELETED BY THE HON'BLE ITAT VIDE THEIR ORDER DATED 30-01-2014 IN ITA NO. 2 00/JP/2012. THE ONLY ADDITION WHICH SURVIVES IS TRADING ADDITION OF RS. 40,307/-. IT IS NOTED THAT THIS ADDITION HAS BEEN MADE ON ACCOUNT OF UNVERIFIA BLE PURCHASES. THE ADDITION HAS BEEN MADE ONLY ON ESTIMATE BASIS, THER EFORE, DOES NOT ATTRACT THE LEVY OF PENALTY U/S 271(1) ( C ). THE PENALTY L EVIED BY THE AO, THEREFORE, APPEARS TO BE UNJUSTIFIED AND IS, ACCORDINGLY, CANC ELLED. 2.2 APROPOS REMAINING SMALL TRADING ADDITION OF RS. 40,307/-, IT IS CONTENDED THAT ESTIMATION OF GROSS PROFIT IS PURELY A SUBJECT MATTER OF OPINION AND CANNOT BE MADE A BASIS FOR IMPOSING PEN ALTY. RELIANCE IS PLACED IN THE CASE OF CIT VS. KRISHI TYRE RETREADING AND R UBBER INDUSTRIES IN ITA ITA NO. 662/JP/2014 ITO, WARD- 1(1), JAIPUR VS. SMT . USHA MODI 3 NO. 582/2008 (RAJ) WHEREIN IT HAS BEEN HELD THAT WH ERE ADDITION WAS MADE ON ESTIMATE BASIS AND ASSESSEE'S EXPLANATION MADE W AS ACCEPTED, NO PENALTY COULD BE LEVIED U/S 271(1)( C )OF THE I.T. ACT, 196 1. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN T HE CASE OF SHIV LAL TAK VS. CIT,25 TW 341. 2.3 THE LD. DR IS HEARD. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. SINCE THE ENTIRE ADDITION IN Q UESTION HAS BEEN SUBSTANTIALLY DELETED BY ITAT EXCEPT SUSTAINING ONL Y A SMALL AMOUNT OF RS. 40,307/-, THE PENALTY QUA THE BALANCE ADDITION DOES NOT SURVIVE AND BASED ON ITAT FINDING THE LD. CIT(A) HAS RIGHTLY DELETED THE PENALTY. 2.5 APROPOS REMAINING SMALL TRADING ADDITION OF RS. 40,307/- THE SAME BEING BASED ON TRADING ESTIMATION, RESPECTFULLY REL YING ON HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KR ISHI TYRE RETREADING AND RUBBER INDUSTRIES (SUPRA), WE UPHOLD THE ORDER OF T HE LD. CIT(A) DELETING THE SMALL PENALTY ON THIS AMOUNT ALSO. THUS THE APPEAL OF THE REVENUE IS DISMISSED. ITA NO. 662/JP/2014 ITO, WARD- 1(1), JAIPUR VS. SMT . USHA MODI 4 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 /01/20 16. SD/- SD/- FOE FLAG ;KNO VKJ-IH-RKSYKUH (VIKRAM SINGH YADAV) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER FNUKAD@ DATED:- 13 /01/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD- 1(1), JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SMT. USHA MODI, JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.662/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR