Sanjeev Garg, Ghaziabad V. ACIT, Circle- 2, Ghaziabad

ITA 6842/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0108 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 14-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Capital Gains
• Section: 271(1)(c); 143(2)

Judgement Text

1 ITA NO. 6842/DEL/2017 IN THE INCOME TAX APPE LLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL ME MBER AND SHRI PRASHANT MAHARISHI, ACCO UNTANT MEMBER I.T.A. NO. 6842/DEL/20 17 (A.Y 2013-14) (THROUGH VIDEO CON FERENCING) SANJEEV GARG C/O. U S BHARGAVA ADVOCATE, 17, RAM NAGAR, GHAZIABAD UTTAR PRADESH PAN:ACSPG3564B (APPELLANT) VS ITO WARD-4(2)HSIDC BUILDING, VANIJYA NIKUNJ, UDYOG VIHAR PHASE-5, GURGAON HARYANA (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDER DATED 30/08/2017 PASSED BY CIT(A)-GHAZIABAD, FOR ASSESSMENT YEAR 2 013-14. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE PENALTY PROCEEDINGS AND ALSO THE PENA LTY ORDER ARE LIABLE TO BE QUASHED BECAUSE THE 'CHARGE' HAD NOT BEEN SPECIFIED . 2. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, THE PENALTY U/S 271(1) (C) WHICH HAD BEEN LEVIED BY THE ID AO AND WHICH HAS BE EN CONFIRMED BY THE ID CIT(A) DESERVES TO BE DELETED . 3.THAT THE LOWER AUTHORITIES HAD FAILED TO APPRECIA TE THAT IN THE GIVEN CIRCUMSTANCES PENALTY U/S 271(L)(C)WAS NOT LEVIABLE , BECAUSE THE ASSESSEE APPELLANT BY SH. SOMIL AGARWAL, ADV RESPONDENT BY SH. PRAKASH DUBEY, SR. DR DATE OF HEARING 30.06.2021 DATE OF PRONOUNCEMENT 23.07.2021 2 ITA NO. 6842/DEL/2017 HAD HIMSELF OFFERED THE DIFFERENCE BETWEEN THE FIGU RES OF CAPITAL GAIN INITIALLY COMPUTED AND CAPITAL GAIN LATELY COMPUTED , FOR TAX ATION. 3. THE ASSESSEE IS AN INDIVIDUAL AND EARNED INCOME FROM PURCHASE AND SALE OF PROPERTIES AND SHOWN INCOME UNDER THE HEAD CAPIT AL GAIN. THE ASSESSEE CLAIM LOSS OF RS.1,50,000/- FROM HOUSE PROPERTY AS THE INTEREST PAID ON HOUSE LOAN. HE ALSO CLAIMED DEDUCTION OF RS. 1,00,000/- UNDER CHAPTER VIA. THE ASSESSEE FILED HIS RETURN OF INCOME ELECTRONICALLY ON 30/03/2015 DECLARING TOTAL INCOME OF RS. 56,95,330/-. THE ASSESSMENT WAS COMP LETED U/S 142(3) ON 5/1/2016 THEREBY MAKING ADDITION OF RS.9,38,333/- I N RESPECT OF DIFFERENCE FOUND IN CALCULATION SHEET OF CAPITAL GAIN. THUS, HIS TOTAL INCOME WAS ASSESSED AT RS. 66,33,660/- PENALTY NOTICE U/S 271(1)(C) WAS ISSUED ON 1/7/2016. THE PENALTY ORDER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WAS PASSED ON 27/7/2016. THEREBY IMPOSING PENALTY OF RS.1,93,296 /-. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED APPEAL BEFORE THE CIT (A). THE CIT (A) DISMISSED THE APPEAL OF THE A SSESSEE. 5. THE LD. AR SUBMITTED THAT WE NOTICE DATED 1/7/20 16 HAS NOT MENTIONED THE ACTUAL LIMB OF SECTION 271(1)(C) UNDER WHICH TH E PENALTY WAS LEVIED. THE LD. AR RELIED UPON THE DECISION OF THE HON'BLE KARNATAK A HIGH COURT IN CASE OF CIT V. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 (KARNATAKA) IN WHICH SLP AGAINST THIS JUDGMENT HAS BEEN DISMISSED BY HON BLE SUPREME COURT IN VEERBHADRAPPASANGAPPA (SUPRA). THE LD. AR ALSO REL IED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF PCIT VS. M/ S SAHARA INDIA LIFE INSURANCE COMPANY LTD. ITA NO. 475/20 ORDER DATED 2 /8/2019. 6. THE LD. DR SUBMITTED THAT THE NOTICE HAS MENTION ED BOTH THE LIMBS I.E. CONCEALING PARTICULARS OF INCOME AND FURNISHING INA CCURATE PARTICULARS OF INCOME. THUS, THE LD. DR SUBMITTED THAT THE NOTICE IS VALID. THE LD. DR RELIED UPON THE ASSESSMENT ORDER, PENALTY ORDER AND THE OR DER OF THE CIT(A). 3 ITA NO. 6842/DEL/2017 7. WE HAVE HEARD THE LD. DR AND PERUSED ALL THE REL EVANT MATERIAL AVAILABLE ON RECORD. THE PENALTY NOTICE IS ON BOTH THE LIMBS BUT THE PENALTY ORDER IS RESTRICTING ITSELF TO THAT OF FURNISHING OF INACCUR ATE PARTICULARS. THE CALCULATION SHEET OF CAPITAL GAIN WHICH WAS FILED BY THE ASSESS EE DURING THE ASSESSMENT PROCEEDINGS AS CLEARLY SET OUT THAT THERE WAS A DIF FERENCE OF RS. 9,38,333/- WHICH WAS SUBSEQUENTLY OFFERED FOR TAX BY THE ASSES SEE. THE ASSESSEE SUBMITTED THAT THE SAME WAS INADVERTENTLY DONE AND WAS NOT DELIBERATE. IT IS PERTINENT TO NOTE THAT THE ASSESSEE AFTER RECEIVING THE NOTICE U/S 143(2) FILED REVISED COMPUTATION AFTER COMING TO THE KNOWLEDGE T HAT THE ASSESSEE HAS FILED THE CALCULATION SHEET OF THE CAPITAL GAINS AND OFFE RED THE SAME FOR TAXATION. THUS, THE ASSESSEE HAS ADMITTED THE MISTAKE BEFORE THE ASSESSING OFFICER COULD DETECT SUCH OMISSION. THUS, IT IS NOT A CASE OF FU RNISHING OF INACCURATE PARTICULARS OR CONCEALMENT OF INCOME BEFORE THE ASS ESSING OFFICER. SECTION 271 OF THE ACT COMES INTO PICTURE WHEN THERE IS A FAILU RE TO FURNISH RETURNS OR THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURAT E PARTICULARS BEFORE THE ASSESSING OFFICER. BUT IN THE PRESENT CASE BEFORE T HE ASSESSING OFFICER, ALL THE RELEVANT FACTS WERE ALREADY AVAILABLE AND THE MISTA KE HAS BEEN RECTIFIED BY THE ASSESSEE PRIOR TO THE MISTAKE POINTED OUT BY THE AS SESSING OFFICER TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. THEREF ORE, THE ORDER OF THE CIT(A) IS NOT CORRECT, AS THERE IS NO CONCEALMENT OF INCOM E OR FURNISHING OF INACCURATE PARTICULARS. THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT IS THEREFORE QUASHED. THE APPEAL OF THE ASSESSEE IS ALLOWED. THUS, IT DOE S NOT AMOUNT TO INACCURATE FURNISHING OF PARTICULARS OR CONCEALMENT OF INCOME TAX. 8. IN RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23RD DAY OF JULY, 2021. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 23/07/2021 R. NAHEED * 4 ITA NO. 6842/DEL/2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI