ITO, Ropar V. Sh. Madan Mohan Mittal, Ropar

ITA 696/CHANDI/2014

• Counselvise Citation: 69621514 RSA 2014
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 05-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 696/CHD/2014 ASSESSMENT YEAR: 2007-08 THE ITO, VS SHRI MADAN MOHAN MITTAL, WARD 2(2), NEAR PUNJAB & SIND BANK, ROPAR. ROPAR. PAN: ABOPM0576G & ITA NO. 654/CHD/2014 ASSESSMENT YEAR: 2007-08 THE ITO, VS SMT.SATWINDER KAUR DHALIWAL, WARD 6(2), # 965, PHASE 4, MOHALI. MOHALI. PAN: ACPPD5928B & ITA NO. 115/CHD/2014 ASSESSMENT YEAR: 2008-09 THE ITO, VS SMT. SURJIT KAUR, WARD 6(1), # 2668, PHASE-65, MOHALI. MOHALI. PAN: AYEPK2549J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.MITTAL RESPONDENT BY : SHRI SUDHIR SEHGAL FOR SHRI TEJ MOHAN SINGH DATE OF HEARING : 15.10.2015 DATE OF PRONOUNCEMENT : 16.10.2015 O R D E R PER BHAVNESH SAINI,JM ALL THE APPEALS BY REVENUE ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. CIT(APPEALS) CHANDIGARH DAT ED 2 15.05.2014 FOR ASSESSMENT YEAR 2007-08, DATED 04.04.2014 FOR ASSESSMENT YEAR 2007-08 AND DATED 05.11.2013 FOR ASSESSMENT YEAR 2008-09, CHALLENGING THE CANCELLATION OF PENALTY UNDER SECTION 271(1)(C) OF THE IT ACT AGAINST ABOVE DIFFERENT ASSESSEES. 2. SINCE COMMON ISSUE IS INVOLVED IN ALL THE APPEAL S, THEREFORE, ALL APPEALS ARE HEARD TOGETHER AND WE DI SPOSE OF THE SAME BY THIS COMMON CONSOLIDATED ORDER. 3. BRIEFLY THE FACTS IN COMMON, IN ALL THE APPEALS RELATING TO THE LEVY OF PENALTY ARE THAT ASSESSEES ARE MEMBE RS OF DIFFERENT HOUSING SOCIETIES CONSISTING OF SEVERAL M EMBERS. THE SOCIETY HAS LAND IN VILLAGE KANSAL, DISTRICT MO HALI. THE SOCIETY ENTERED INTO TRIPARTITE JOINT AGREEMENT WIT H M/S HASH BUILDERS PVT. LTD. AND TATA HOUSING DEVELOPMEN T COMPANY, MUMBAI BY VIRTUE OF WHICH THE SOCIETY WOUL D TRANSFER ITS LAND FOR DEVELOPMENT IN LIEU OF THE MO NETARY CONSIDERATION AND ALSO CONSIDERATION IN KIND TO THE MEMBERS OF THE SOCIETY. THE ASSESSEES ARE ALSO MEMBERS OF T HEIR SOCIETIES WHO HAVE ENTERED INTO TRIPARTITE AGREEMEN T. THE TOTAL CONSIDERATION WAS SETTLED + ALLOTMENT OF ONE FLAT TO THE ASSESSEES. THE ASSESSEES HAVE FURNISHED THEIR RETUR N OF INCOME DECLARING SALE CONSIDERATION AND CAPITAL GAI NS. THE ASSESSING OFFICER, HOWEVER, NOTED THAT AS PER THE AGREEMENTS, THE ASSESSEES SHALL HAVE TO RECEIVE THE AMOUNT IN CASH AS WELL AS FURNISHED FLAT. THEREFORE, IT H AS MORE MARKET VALUE AND ACCORDINGLY ENHANCED THE INCOME BY ENHANCING THE CAPITAL GAINS BY ADOPTING THE TOTAL A MOUNT AS 3 SALE CONSIDERATION. VIDE SEPARATE ORDER, ASSESSING OFFICER LEVIED THE PENALTIES IN ALL THE CASES AND THE LD. C IT(APPEALS) CANCELLED THE SAME. 4. THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. T HE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT HON'BLE PUN JAB & HARYANA HIGH COURT IN THE CASES OF ALL THESE ASSESS EES HAVE DELETED THE ADDITIONS ON QUANTUM BY FOLLOWING THE JUDGEMENT IN IDENTICAL CASE OF SHRI C.S.ATWAL V CIT . COPIES OF THE JUDGEMENTS OF THE HIGH COURT IN THE CASES OF ALL THE THREE ASSESSEES AND IN THE CASE OF SHRI C.S.ATWAL V CIT ARE PLACED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT IDENTICAL ISSUE WAS CONSIDERED BY IT AT CHANDIGARH BENCH IN THE CASE OF ITO V SHRI BALWINDE R SINGH DHILLON IN ITA 1140/2014 FOR ASSESSMENT YEAR 2008-0 9 AND VIDE ORDER DATED 03.08.2015, THE DEPARTMENTAL APPEA L ON PENALTY HAS BEEN DISMISSED. THE FINDINGS OF THE TR IBUNAL IN PARA 5 ARE REPRODUCED AS UNDER : 5. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. THE FACTS OF THE CASE OF ASSESSEE ARE ADMITTEDLY IDENTICAL AS HAVE BEEN DECIDED BY THE HON'BLE PUNJA B & HARYANA HIGH COURT IN THE CASE OF SHRI C.S. ATWAL VS CIT, LUDHIANA (SUPRA) IN WHICH THE HON'BLE HIGH COURT DECIDED THE ISSUE OF EXIGIBILITY TO CAPITAL G AIN IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THE CASE OF THE PRESENT ASSESSEE ALSO, THE ASSESSEE HAS, OF HIS OWN FILED ANOTHER RETURN OF INCOME DISCLOSING ALL THE MATERIAL FACTS RELATING TO TRANS FER OF PLOT AND HAS DISCLOSED CAPITAL GAINS ON THE AMOUNT WHICH WAS ACTUALLY RECEIVED DURING THE YEAR UNDER 4 CONSIDERATION. THE DISPUTE WAS LEFT REGARDING TRAN SFER OF PLOT AND THE AMOUNT WHICH WAS NOT YET RECEIVED THROUGH THE AGREEMENT TO SELL. THE LD. CIT(APPEALS ), THEREFORE, ON PROPER APPRECIATION OF THE FACTS AND MATERIAL ON RECORD, CORRECTLY HELD THAT IT IS NOT A CASE OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE EXPLANATION OF THE ASSE SSEE WAS BONAFIDE AND AFTER PASSING THE IMPUGNED ORDER, WHEN THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI C.S.ATWAL VS CIT, LUDHIANA (SUPRA) HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESS EE, WOULD CLEARLY PROVE THAT IT IS NOT A FIT CASE OF LE VY OF THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THEREFORE, WE DO NOT FIND ANY ERROR IN THE ORDER OF LD. CIT(APPEALS) IN DELETING PENALTY. THE DEPARTMENTAL APPEAL FAILS AND IS DISMISSED. 5. THE LD. DR, HOWEVER, RELIED UPON ORDER OF THE ASSESSING OFFICER AND STATED THAT ADDITIONS HAVE BE EN DELETED BY THE HON'BLE HIGH COURT. 6. ON CONSIDERATION OF THE SUBMISSIONS OF PARTIES, WE ARE OF THE VIEW THE ISSUE IS COVERED IN FAVOUR OF THE A SSESSEE BY ORDER OF ITAT CHANDIGARH BENCH IN THE CASE OF SHRI BALWINDER SINGH DHILLON IN WHICH, ON IDENTICAL FACT S PENALTY HAS BEEN CANCELLED AND THE DEPARTMENTAL APPEAL HAS BEEN DISMISSED. FURTHER, WHEN HON'BLE HIGH COURT HAS DEL ETED THE ADDITION IN THE CASES OF ASSESSEES BY FOLLOWING DECISION IN THE CASE OF SHRI C.S. ATWAL V CIT (SUPRA), THERE FORE, NOTHING SURVIVES IN FAVOUR OF THE REVENUE TO LEVY T HE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IN THE RESULT, THERE ARE 5 NO MERITS IN THE DEPARTMENTAL APPEALS, THE SAME ARE ACCORDINGLY, DISMISSED. 7. IN THE RESULT, ALL DEPARTMENTAL APPEALS ARE DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16 TH OCT., 2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD