ACIT, Jaipur V. SMT. ALHENDO BANO, Jaipur

ITA 696/JPR/2012

• Counselvise Citation: 69623114 RSA 2012
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 27-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEENA JEEPH
• Assessee Lawyers: DILIP SHIV PURI DHK
• Section: 143(3); 54F; 54

Judgement Text

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 VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NO. 696/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 THE ACIT CIRCLE- 3 JAIPUR CUKE VS. SMT. ALHENDO BANO. L/H OF SH. HAZI MOHAMMED, 28-B, STATION ROAD, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAWPY 0484 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SMT. NEENA JEEPH, JCIT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI DILIP SHIV PURI (ADVOCATE) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/02/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 20/03/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A)-I, JAIPUR DATED 07-05-2012 FOR THE ASSESSMEN T YEAR 2005-06 WHEREIN THE REVENUE RAISED FOLLOWING GROUND. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) IS JUSTIFIED IN DELE TING PENALTY IMPOSED U/S 271(1) (C ) OF RS. 6,45,137/- ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 2 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN OLD LADY REPRESENTING HER DECEASED HUSBAND AS A LEGAL HEIR. THE ORIGINAL ASSET WAS COMPLETED U/S 143(3) OF THE ACT BY PARTLY DISALLOWI NG THE ASSESSEE'S CLAIM OF EXEMPTION U/S 54 FROM LONG TERM CAPITAL GAIN. TH E ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A) WHICH WAS DISMISSED. THEREAFTER, THE AO ISSUED PENALTY NOTICE U/S 271(1)( C ) OF THE ACT; I T WAS REPLIED BY THE ASSESSEE VIDE LETTER DATED 5-03-2010. THE CONTENTS OF THE LETTER AND THE AOS OBSERVATIONS IN LEVYING THE PENALTY ARE AS UND ER:- IN RESPONSE TO YOUR NOTICE U/S 271(1) FOR LEVY O F PENALTY IN RESPECT OF ABOVE REFERRED ASSESSEE, THE HUMBLE ASSESSEE BEGS TO SUBMIT AND STATE AS UNDER:- (1) THAT THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 678580/-. IN ADDITION TO ABOVE, THE ASSESSEE HAD ALSO DECLARED INCOME FROM LONG TERM CAPITAL GAIN OF RS. 3409102/- WHICH WAS CLAIMED AS EXEMPT U/S 54F. THE ASSESSMENT WAS FINALIZED BY DISALLOWING THE EXEMPTION OF LONG TERM CAPITAL GAIN, TAX AS CLAIMED EXEMPT BY THE ASSESSEE IN RETURN OF INCOME . (2) THAT THE EXEMPTION U/S 54F WAS DENIED IN ASSESS MENT PROCEEDINGS ONLY ON THE TECHNICAL GROUND THAT THE A SSESSEE HAD NOT DEPOSITED THE CAPITAL GAIN ACCRUING TO THE ASSESSEE IN SPECIFIED BANK ACCOUNT BEFORE DATE OF FILING OF RETURN. THE C LAIM FOR PURCHASE OF LAND OF RS. 8 LACS WAS ALLOWED BUT COST OF CONST RUCTION OF NEW RESIDENTIAL HOUSE WHICH WAS AN ADMITTED FACT WAS DI SALLOWED ONLY ON TECHNICAL GROUND. (3) IT IS SUBMITTED THAT ON ACCOUNT OF ILLNESS OF ASSESSEE AND HIS SUBSEQUENT DEATH AND DUE TO THE FACT THAT A SSESSEE WAS OLD ILLITERATE INDIVIDUAL THIS TECHNICAL COMPLIANCE OF NON-DEPOSIT OF CAPITAL GAIN IN SPECIFIED BANK ACCOUNT COULD NOT BE COMPLIED BY THE ASSESSEE. IT IS SUBMITTED THAT THE ADDITIONS TO THE RETURNED INCOME ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 3 ARE ONLY ON ACCOUNT OF DISALLOWANCE OF CLAIM WHICH WAS DULY DISCLOSED IN RETURN AND NO FRESH MATERIAL HAS BEEN BROUGHT ON RECORD AND THEREFORE, IT IS HUMBLY SUBMITTED THAT N O PENALTY MAY KINDLY BE LEVIED ON THIS ACCOUNT. (4) THAT THERE IS NO MENS REA INVOLVED AND ADDITION S ARE ONLY ON ACCOUNT OF DISALLOWANCE OF CLAIM OF LONG TE RM CAPITAL GAIN U/S 54F. IT IS SETTLED PRINCIPAL OF LAW THAT NO PEN ALTY ON DISALLOWANCE OF EXPENSES OR REBATE SHOULD BE LEVIED U/S 271(1)( C) OF THE ACT. I HAVE CONSIDERED THE REPLY OF THE A.R. OF THE ASSE SSEE THAT THE SAME IS NOT ACCEPTABLE BECAUSE NO INVESTMENT IN THE RESIDENTIAL HOUSE HAS BEEN MADE AND THE ASSESSEE HAS WILLFULLY FURNISHED INACCURATE PARTICULARS AND CLAIMED DEDUCTION U/S 54 OF THE I.T. ACT, 1961. THEREFORE, I FIND IT A FIT CASE FOR LEVY OF P ENALTY U/S 271(1)( C) AS THE ASSESSEE WAS WILLFULLY FURNISHED INACCURATE PARTICULARS OF HIS INCOME AND CONCEALED HIS TAXABLE INCOME. THE PENALT Y IS IMPOSED AS UNDER:- (A) AMOUNT OF CONCEALED INCOME RS. 2874941/- (B) TAX ON THE ABOVE CONCEALED INCOME RS. 645137/ - MINIMUM PENALTY LEVIABLE 100% RS. 645137/- (D) MAXIMUM PENALTY LEVIABLE 300% RS. 1935410/- MINIMUM PENALTY AT THE RATE OF 100% OF TAX SOUGHT TO BE EVADED AT RS. 645137/- IS IMPOSED. THE PENALTY ORDER IS PASSED AFTER OBTAINING APPROVA L FROM THE ADDL. CIT, RANGE-3.J[R VIDE HER OFFICE LETTER N O. ADDL./CIT/R- 3/JPR /2009-10/1589 DATED 19-03-2010. 2.2 AGGRIEVED, THE ASSESSEE PREFERRED FIST APPEAL R EITERATING THE FACTS AND CONTENDING BEFORE THE LD. CIT(A) IS AS UNDER:- ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 4 4.2 .. (I) THE ASSESSEE HAD PURCHASED A PLOT OF LAND FOR RS. 8 LACS DURING THE ASSESSMENT YEAR 2005-06. THE CONSTRUCTION WAS STARTED IMMEDIATELY AND COMPLETED IN FINANCIAL YEAR 2006-07 I.E. ASSESSMENT YEAR 2007-08. THE PROOF OF CONSTRUCTION OF A NEW RESIDENTIAL HOUSE WAS SUBMITTED IN QUANTUM APPEAL BEFORE THE LD . CIT(A). HOWEVER, THE AO AS WELL AS THE FIRST APPELLATE AUTHORITY DID NOT CONSIDER THE FACT OF REINVESTMENT OF CAPITAL GAIN IN A NEW RESIDENTIAL H OUSE AND DISALLOWED THE EXEMPTION U/S 54 ON A TECHNICAL GROUND THAT THE ASSESSEE FAILED TO DEPOSIT THE GAIN AMOUNT IN A SPECIFIED ACCOUNT BEFO RE THE DUE DATE OF FILING OF A RETURN AND THERE WAS NON-COMPLIANCE OF SECTION 54(2). (II) IT WAS FURTHER SUBMITTED THAT THE ASSESSEE W AS ALLOWED DEDUCTION OF COST OF PURCHASE OF A NEW LAND FOR A S UM OF RS. 8 LACS ONLY AD THE AMOUNT SPENT BY THE ASSESSEE ON THE CONSTRUC TION OF A NEW RESIDENTIAL HOUSE TILL DUE DATE OF FILING OF A RETU RN WAS ALSO NOT CONSIDERED. (III) MEANWHILE, THE ASSESSEE HAD DIED AND THE MA TTER WAS NOT TAKEN TO THE TRIBUNAL BY THE LEGAL HEIR. (IV) IT WAS SUBMITTED THAT LEVY OF PENALTY ON ACC OUNT OF TECHNICAL GROUND WAS UNJUSTIFIED. THE ONLY FAILURE ON THE PART OF THE ASSESSEE WAS THAT DUE TO HIS CONTINUOUS ILLNESS AND SUBSEQUENT DEATH HE HAD NOT DEPOSITED THE BALANCE AMOUNT OF GAIN IN A S PECIFIED CAPITAL GAIN BANK ACCOUNT. THE CONSTRUCTION OF THE RESIDENTIAL H OUSE HAD STARTED AND WAS COMPLETED IN ASSESSMENT YEAR 2007-08. THUS THE ADDITIONS TO THE RETURNED INCOME WERE ONLY DISALLOWANCE OF CLAIM WHI CH WAS DISCLOSED IN THE RETURN AND NO FRESH MATERIAL WAS BROUGHT ON REC ORD. RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS:- (A) CIT VS. RELIANCE PETROPRODUCTS (P) LTD., 322 IT R 158 (SC). (B) CIT VS. ATUL BINDAL 317 ITR 1 (SC). 2.3 THE LD. CIT(A) DELETED THE PENALTY BY OBSERVING AS UNDER:- 4.3 I HAVE CAREFULLY PERUSED THE PENALTY ORDER AN D ASSESSMENT ORDER AND THE APPELLATE ORDER OF THE LD. CIT(A) AND THE SUBMISSIONS OF THE A.R. THE FACTS OF THE CASE ARE THAT THE LD. CIT(A) ON PAGE 2 OF HIS ORDER ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 5 HAS ADMITTED AND PHOTOGRAPH OF THE BUILDING AND SIT E PLAN WERE FILED IN SUPPORT OF THE CLAIM THAT THE HOUSE WAS DULY CONSTR UCTED AS PER THE CONDITIONS SPECIFIED U/S 54 OF THE I.T. ACT. HOWEVE R, HE DISMISSED THE APPEAL OF NON-COMPLIANCE OF PROVISIONS OF SECTION 5 4(2). THE APPELLANT HAD PASSED AWAY AND WAS REPRESENTED BY HIS LEGAL HE IR THAT IS HIS WIFE SMT. ALHENDO BANO. THE APPELLANT AFTER THE SALE OF LAND HAD NOT BEEN KEEPING GOOD HEALTH. GIVEN THE ABOVE FACTS, IT IS S EEN THAT IT CANNOT BE SAID THAT HE WAS GUILTY OF FILING OF INACCURATE PAR TICULARS OF HIS INCOME BECAUSE HE HAD DULY DISCLOSED ALL THE MATERIAL AVAI LABLE WITH HIM. THE MERE FACT THAT HE DID NOT DEPOSIT THE CAPITAL RECEI VED FROM SALE OF PROPERTY IN THE SPECIFIED CAPITAL GAINS ACCOUNTS CA NNOT BE CONSTRUED TO BE AN ACT OF DELIBERATE FILING OF INACCURATE PARTICULA RS REGARDING CONSTRUCTION OF A HOUSE. THEREFORE, GIVEN THE ABOVE FACTS, IT IS SEEN THAT THE CASE OF THE ASSESSEE IS COVERED BY THE JUDICIAL PRONOUNCEMENT BY HON'BLE S.C. IN THE CASE OF CIT VS. RELIANCE PETROP RODUCTS (P) LTD. (SUPRA). THE PENALTY IMPOSED U/S 271(1) FOR FILING OF INACCURATE PARTICULARS OF INCOME OF RS. 6,45,137/- IS DELETED. 2.4 AGGRIEVED, THE REVENUE IS BEFORE US. 2.5 THE LD. DR RELIED ON THE ORDER OF THE AO AND CO NTENDS THAT ASSESSEE'S ORIGINAL STAND IN PENALTY PROCEEDINGS WA S TO THE EFFECT THAT THE AMOUNT OF CAPITAL GAIN HAS BEEN INVESTED IN CONSTRU CTION OF HOUSE; WHEREAS IN PENALTY PROCEEDINGS IT WAS EXPLAINED BY HIM THAT AMOUNT WAS NOT INVESTED. THUS THE EXPLANATION WAS FOUND TO BE INCORRECT AND ASSESSE IS GUILTY OF FALSE EXPLANATION. IN THESE CIRCUMSTAN CES THERE IS NO BURNED ON THE AO TO DEMONSTRATE THE ELEMENT OF MENS REA. THE PENALTY IS A CIVIL LIABILITY AND ASSESSEE'S EXPLANATION HAVING BEEN FO UND TO BE INCORRECT, THE LEVY OF PENALTY IS FOUND JUSTIFIED. RELIANCE IS PLA CED ON THE FOLLOWING ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 6 (I) UNION OF INDIA & OTHERS VS DHARMENDRA TEXTILE P ROCESSORS AND OTHERS, 306 ITR 277 (SC) (II) ACIT VS. VINAY A JONEJA 163 TTJ (PUNE) 652 THE LD. CIT(A) WITHOUT APPRECIATING THESE CRUCIAL A SPECTS HAS DELETED THE PENALTY BY MERELY RELYING ON ASSESSEES DEATH AND ILL HEALTH OF L/R HIS WIFE ALHEND BANO AND SUPREME COURT JUDGMENT IN THE CASE OF RELIANCE PETRO PRODUCTS (SUPRA). ORDER OF AO IS RELIED ON. 2.6 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS AS UN DER:- A) THE AO HAD MADE ADDITIONS TO THE RETURNED INCOM E ON THE TECHNICAL GROUND THAT ASSESSEE HAD NOT DEPOSITED TH E RESULTANT CAPITAL GAIN AMOUNT BY DUE DATE SPECIFIED UNDER CAP ITAL GAIN DEPOSIT ACCOUNT. THE ASSESSEE HAD INCOME FROM LONG TERM CAPITAL GAIN IN ASSTT. YEAR 2005-06 FROM SALE OF RESIDENTIA L PROPERTY AND COULD HAVE REINVESTED THE CAPITAL GAIN ONE YEAR BEF ORE OR TWO YEARS AFTER DATE OF TRANSFER IN PURCHASE OF ANOTHER RES IDENTIAL HOUSE OR CONSTRUCTED A NEW RESIDENTIAL HOUSE WITHIN THREE YE ARS FROM DATE OF TRANSFER. (B) IT IS AN ADMITTED FACT THAT THE ASSESSEE HAD PU RCHASED A PLOT OF LAND FOR RS.8.00 LACS DURING ASSTT. YEAR 20 05-06 ITSELF. THE CONSTRUCTION WAS STARTED IMMEDIATELY THEREON AND CO MPLETED IN FINANCIAL YEAR 2006-07 RELEVANT TO ASSTT. YEAR 2007 - 08. PROOF OF CONSTRUCTION OF A NEW RESIDENTIAL HOUSE WAS ALSO SU BMITTED IN QUANTUM APPEAL BEFORE LD CIT(A). HOWEVER, THE AO AS WELL AS FIRST APPELLATE AUTHORITY DID NOT CONSIDER THE FACT OF RE INVESTMENT OF CAPITAL GAIN IN NEW RESIDENTIAL HOUSE AND DISALLOWE D THE EXEMPTION U/S 54 ON A PURE TECHNICAL GROUND THAT THE ASSESSEE FAILED TO DEPOSIT THE GAIN IN SPECIFIED ACCOUNT BEFORE THE DUE DATE O F FILING OF RETURN. IT WAS HELD BY BOTH AO AND LD CIT (A) IN QUANTUM AP PEAL THAT ONCE ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 7 THE PROVISIONS OF SECTION 54(2) ARE UN COMPLIED, TH E FACT OF EXEMPTION IN SECTION 54 WILL NOT BE CONSIDERED. THE ASSESSEE WAS CONSEQUENTLY ALLOWED ONLY DEDUCTION OF COST OF PURC HASE OF NEW LAND FOR A SUM OF RS. 8.00 LACS AND EVEN THE AMOUNT SPENT BY ASSESSEE ON THE CONSTRUCTION OF NEW RESIDENTIAL HO USE TILL DUE DATE OF FILING OF RETURN WAS ALSO NOT CONSIDERED. DUE TO ASSESSEES DEATH AFTER A LONG SPELL OF DEBILITATING SICKNESS FURTHER PROCEEDINGS WERE TAKEN BY THE WIDOW A PARDANASHEEN MUSLIM LEADY AS L EGAL HEIR. C. IT IS SUBMITTED THAT ALL THE RELEVANT PARTICULAR S ABOUT SALE OF PROPERTY, PURCHASE OF NEW PLOT, PART INVEST MENT IN NEW HOUSE AND NO DEPOSIT IN CGA/C SCHEME WERE FILED WIT H THE RETURN. THE AO MADE UP HIS MIND NOT FROM ANY EXTERNAL INFOR MATION OR MATERIAL BUT FROM THE INFORMATION CONTAINED IN THE RETURN ONLY. AO HAS NOT REFERRED TO ANY SUCH MATERIAL WHATSOEVER. K EEPING IN VIEW HONBLE SUPREME COURT JUDGMENT IN THE CASE OF RELIA NCE PETRO PRODUCTS LEVY OF CONCEALMENT PENALTY ON A DENIAL OF CLAIM OF DEDUCTION OR EXEMPTION BASED ON A PURELY TECHNICAL GROUND IS ABSOLUTELY UNCALLED FOR AND UNJUSTIFIED. THE ASSESS EE AFTER SALE OF OLD HOUSE DESIRED TO HAVE A HOUSE IN LIEU THEREOF. FOR THIS PURPOSE HE DECLARED IN THE RETURN THE PROCEEDS OF SALE, CAP ITAL GAIN ON SALE OF ASSETS, INVESTED A SUM OF RS. 8.00 LACS IN PURCH ASE OF NEW PLOT OF LAND AND COMMENCED THE CONSTRUCTION OF A NEW HOUSE. THE ONLY FAILURE ON THE PART OF THE ASSESSEE WAS THAT NET CA PITAL GAINS WERE NOT DEPOSITED IN SPECIFIED CAPITAL GAIN BANK ACCOUN T DUE TO HIS CONTINUOUS ILLNESS AND SUBSEQUENT DEATH. THE ISSUE OF ASSESSEES PROLONGED BAD HEALTH AND CONSEQUENT DEATH HAS NOT B EEN DISPUTED BY THE DEPARTMENT. THE CONSTRUCTION OF THE RESIDENT IAL HOUSE WAS STARTED AT THE EARLIEST BY THE ASSESSEE WITH HELP O F RELATIVES TO ENSURE THAT HIS OLD WIFE IS PUT IN A GOOD ACCOMMODA TION AFTER HIS PASSING AWAY. THE HOUSE WAS COMPLETED BY ASSESSEE I N THE FINANCIAL YEAR 2006-07 AS STATED IN ASSESSMENT AND APPELLATE PROCEEDINGS, PHOTOGRAPHS IN THIS BEHALF WERE ALSO F ILED. THUS AT MAX IT IS A CASE OF TECHNICAL OR VENIAL BREACH AND NOT A CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME OR C ONCEALMENT OF ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 8 INCOME AS BEING PROPOSED BY AUTHORITIES BELOW. RELI ANCE IS PLACED ON HONBLE SUPREME COURT JUDGMENT IN THE CASE OF HI NDUSTAN STEELS LTD. VS. STATE OF ORISSA, 83 ITR 26 FOR THE PROPOSITION THAT PENALTY CANNOT BE IMPOSED FOR TECHNICAL OR VENIAL V IOLATION OF LEGAL PROVISION AND THE PENALTY SHOULD NOT BE IMPOSED MER ELY BECAUSE IT IS LAWFUL TO DO SO. D) IT IS FURTHER PLEADED THAT TECHNICAL NON COMPLI ANCE RESULTED BECAUSE OF UNDISPUTED AND SERIOUS FACTS LI KE PROLONGED ILLNESS AND HIS SUBSEQUENT DEATH OF THE ASSESSEE CO UPLED WITH THE FACTS THAT HE WAS OLD AND ILLITERATE INDIVIDUAL. SU CH RELEVANT AND ATTENDANT FACTS CANNOT BE IGNORED TO JUSTIFY A CONC EALMENT PENALTY FOR A TECHNICAL VIOLATION OF BANK DEPOSIT PROVISION S. IT IS A WELL SETTLED LAW THAT MERE DISALLOWANCE OF ANY CLAIM OR EXEMPTION FOR WHICH RELEVANT DETAILS ARE FILED ALONG WITH THE RET URN CANNOT BE SUBJECTED TO LEVY A PENALTY U/S 271(1)(C ). THE RE LIANCE IS PLACED ON FOLLOWING DECISION IN THIS REGARD. A. CIT VS. RELIANCE PETRO PRODUCTS (P) LTD. 322 ITR 15 8 (SC) B. CIT VS. ATUL BINDAL 318 ITR 1 (SC) C. SHIV LAL TAK, 521 ITR 373 (RAJ.) D. DILIP N SHROFF 291 ITR 519 (SC) E. CHANDRA PAL BAGGA VS. ITAT (RAJ.) 261 ITR 67 (F) RELIANCE IS FURTHER PLACED ON FOLLOWING JUDGEME NTS WHERE PENALTY U/S 271(1)( C) WAS HELD NOT LEVIABLE WHERE THE MATTER IS RELATED TO CAPITAL GAIN TRANSACTIONS/ INVESTMENT S IN CONSTRUCTION OF NEW PROPERTY. (A) CIT VS. PUSHPENDRA SURANA (RAJ.) (IN ITA NO. 209 OF 2012) (B) VENKATESH MURTHY VS. ITO 45 TAXMAN. COM 71 (C) CIT VS. SMT. NEERU DUTTA (DEL.) 35 TAXMAN. COM 454 (D) MANJOOR AHMED VS. ITO (JODHPUR) (2012) 20 TAXMAN. COM 256 ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 9 (E) DEVI DASS SUKHANI VS. ITO (JODHPUR) (2006) 101 TTJ 551 (F) AAA PORTFOLIOS (P) LTD. VS. DCIT (DELHI BENCH A) (2014) 51 TAXMAN. COM 241 (G) CIT VS. MANSUSKH DYEING AND PRINTING MILLS (BOM.) (2013) 38 TAXMAN. COM 242 (H) TEKCHAND PANNALAL SHAH VS. ITO (JAIPUR ) 14 TTJ 571 (I) UNION OF INDIA VS. RAJASTHAN SPG. MILLS 13 SCC 448 (J) CIT VS. AGRO TRADE 32 ITR 316 (DEL.) (K) DURGA PD. YADAV VS. ITO IN ITA NO. 550/JP/2011 2.7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FOLLOWING FACTS EMERGE FROM TH E RECORD: A. ASSESSEE WAS AND ILLITERATE OLD PERSON SUFFERING FR OM PROLONGED HEALTH PROBLEMS AND ULTIMATELY DEMISED LEAVING THE WIDOW I.E. L/R BEHIND HIM WHO HAS CONTESTED THE PROCEEDINGS. B. THE ENTIRE ISSUE REVOLVES AROUND THE SALE OF A PROP ERTY IN THE QUEST OF A NEW HOUSE FOR THE ASSESSE AND HIS WIFE. C. ALL THE PARTICULARS OF SALE LIABLE FOR CAPITAL GAIN S WERE FILED WITH THE RETURN OF THE INCOME, COMPUTATION OF TAXABLE CAPITA L GAINS IS NOWHERE IN DOUBT. D. ASSESSEE PURCHASED A NEW PLOT WITHIN PRESCRIBED TIM E AND STARTED CONSTRUCTION THEREON; THESE FACTS AGAIN ARE NOT DIS PUTED BY THE DEPARTMENT. E. BY THE TIME PENALTY PROCEEDINGS COMMENCED ASSESSE H AD COMPLETED THE HOUSE AND PHOTOGRAPH THEREOF WERE FUR NISHED DURING THE COURSE THEREOF. F. ALL THE PARTICULARS ARE FILED IN THE RETURN OF INCO ME. ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 10 THUS THE DEFAULT WHICH IS STIPULATED TIME HELD BY A O IS REGARDING NOT COMPLYING WITH THE TECHNICAL PROVISIONS OF DEPOSIT OF NET GAINS IN CGA/C SCHEME WITHIN PRESCRIBED DATE. ASSESSEE HAVING CONS TRUCTED THE NEW RESIDENTIAL HOUSE IS ALSO NOT DISPUTED. ALL THE REL EVANT PARTICULARS WERE FILED ALONG WITH THE RETURN. AO WHILE IMPOSING PENA LTY HAS NOT RELIED ON ANY OUTSIDE INFORMATION BUT THE PARTICULARS FROM TH E RETURN ONLY. IN OUR CONSIDERED VIEW THE RATION OF HONBLE SUPREME COURT IN RELIANCE PETRO PRODUCTS (SUPRA) IS SQUARELY APPLICABLE TO ASSESSEE S CASE. THUS DISALLOWANCE OF A CLAIM OR EXEMPTION MADE IN THE RE TURN CANNOT BE SUBJECTED TO PENALTY U/S 271(1) (C ) MORE SO WHEN T HE RELEVANT INFORMATION IS FILED IN THE RETURN OF INCOME. BESID ES WE FIND MERIT IN THE CONTENTIONS OF LD. COUNSEL FOR THE ASSESSE THAT THE VIOLATION IS TECHNICAL IN NATURE AND PENALTY SHOULD NOT BE LEVIED AS IT IS ME RELY LAWFUL TO DO SO AS HELD BY HONBLE APEX COURT IN HINDUSTAN STEELS LTD. VS. STATE OF ORISSA, 83 ITR 26 (SC). BESIDES IN A CATENA OF CASE CITED B Y LD. COUNSEL MENTIONED ABOVE ISSUES REGARDING DEPOSIT OF AMOUNTS IN ACCOUNTS IN SUCH FACTS HAVE BEEN HELD TO BE NOT LIABLE FOR PENALTY U /S 271(1) ( C ). IN VIEW OF THE FOREGOINGS, WE HAVE NO HESITATION TO HOLD T HAT THERE IS NO INFIRMITY IN THE ORDER OF LD. CIT(A) DELETING THE PENALTY WHI CH IS UPHELD. THUS REVENUES GROUND IN THIS BEHALF IS DISMISSED. ITA NO. 696//JP/2012 ACIT , CIRCLE- 3, JAIPUR VS. SMT. ALHENDO BANO, JAI PUR . 11 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 20/03/2015 . SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20/03/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ACIT , CIRCLE- 3, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SMT. ALHENDO BANO, L/H SHRI HAZI MOHD., JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), JAIPUR 3. VK;DJ VK;QDR@ CIT, JAIPUR 4. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 5. XKMZ QKBZY@ GUARD FILE (ITA NO.696/JP/2012) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR