A.C.I.T.-4(1), Agra V. M/s V. Ram Chandra Construction Pvt. Ltd., Agra

ITA 7/AGR/2014

• Counselvise Citation: 720314 RSA 2014
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-06-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 13-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SHARMA
• Keywords: Difference of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO. 07/AGRA/ 2014 ASSESSMENT YEAR: 2003-04 ACIT 4(1), VS. M/S V. RAM CHANDRA CONSTRUCTION P VT. AGRA. LIMITED, SANJAY PLACE, AGRA. (PAN AAACV 5124 F) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.D. SH ARMA, JR.D.R. RESPONDENT BY : NONE DATE OF HEARING : 02.06.2014 DATE OF PRONOUNCEMENT : 06.06.2014 ORDER PER JOGINDER SINGH, JUDICIAL MEMBER: THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 12.09.2013 OF THE LD. FIRST APPELLATE AUTHORITY AGRA, DELETING THE PENALT Y OF RS.4,25,000/- IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHRI S.D. SHARMA, LD. D.R. WHEREAS NOBODY WAS PRESENT FOR THE ASSESSEE. THE C RUX OF THE ARGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS THAT THE QUANTUM ADDIT ION WAS CONFIRMED BY THE LD. CIT(A). THUS, THE PENALTY WAS DELETED WITHOUT APPR ECIATING THE FACT THAT THE ASSESSEE FAILED TO PRODUCE ANY MATERIAL/EVIDENCE IN SUPPORT OF ITS CLAIM TO THE EFFECT THAT THE RATE OF THE PROPERTY WAS NOT RS.31,00,000/ - PER HECTARE DURING THE CONCERNED ITA NO.07/AGRA/2014 A.Y. 2003-04 2 PERIOD, AS ADOPTED BY THE A.O. FOR COMPUTING SHORT TERM CAPITAL GAIN AND MADE THE ADDITION OF RS.18,85,000/-. THE ASSESSMENT ORDER W AS STRONGLY DEFENDED. 3. WE HAVE CONSIDERED THE SUBMISSIONS PUT FORTH BY THE LD. D.R., PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF A RE THAT THERE WAS AN AGREEMENT TO SELL THE PROPERTY TO SHRI KAILA DEVI ESTATES LIMITE D BY THE ASSESSEE ON 05.09.2002 BUT THE REGISTRATION WAS DONE ON 21.11.2002. THE P ROPERTY IN QUESTION WAS PURCHASED ON 20.11.1999. THE DISPUTE WAS WHETHER T HE SALE OF THE PROPERTY WAS ON 05.09.2002 OR 20.11.2002. AS PER THE ASSESSEE THE SALE OF THE PROPERTY WAS 21.11.2002, WHICH IS THE DATE OF REGISTRATION WHERE AS AS PER THE A.O. THE SALE OF THE PROPERTY WAS EFFECTED ON 05.09.2002, THE DATE ON WH ICH THE ASSESSEE MADE THE AGREEMENT TO SELL AND RECEIVED CONSIDERATION. ULTI MATELY THE MATTER TRAVELLED TO THE TRIBUNAL AND THERE WAS A DIFFERENCE OF OPINION BETW EEN THE MEMBERS. THE LD. JUDICIAL MEMBER WAS OF THE VIEW THAT THE ASSESSEE W AS CORRECT IN DECLARING LOAN FROM CAPITAL GRAIN ON THE SALE OF PROPERTY WHEREAS THE LD. ACCOUNTANT MEMBER DISSENTED FROM THE VIEW OF THE LD. JUDICIAL MEMBER. THE MATTER WAS DECIDED BY THE LD. THIRD MEMBER, WHO DECIDED THE ISSUE AGAINST THE ASSESSEE HOLDING THAT THE CAPITAL GAIN, ACCRUED TO THE ASSESSEE WAS SHORT TERM CAPITA L GAIN. IN VIEW OF THIS FACT, PENALTY WAS IMPOSED BY THE DEPARTMENT UNDER SECTION 271(1)(C) OF THE ACT. THE AGGRIEVED ASSESSEE CARRIED THE MATTER BEFORE THE LD . CIT(A) WHO BY FOLLOWING VARIOUS JUDICIAL PRONOUNCEMENT DELETED THE PENALTY AGAINST WHICH THE REVENUE IS IN ITA NO.07/AGRA/2014 A.Y. 2003-04 3 APPEAL BEFORE THIS TRIBUNAL. IN VIEW OF THIS FACT AND THE ASSERTION MADE BY THE LD. DEPARTMENTAL REPRESENTATIVE, NOW QUESTION ARISES WH ETHER THE PENALTY WAS RIGHTLY DELETED BY THE LD. CIT(A). ADMITTEDLY, FOR IMPOSIN G PENALTY UNDER SECTION 271(1)(C) OF THE ACT EITHER THERE SHOULD BE CONCEALMENT OF IN COME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. ONE CLEAR FACT IS OOZI NG OUT THAT THE ASSESSEE DULY FURNISHED THE FULL PARTICULARS OF INCOME WITH SUPPO RTING EVIDENCE AND THERE WAS MERELY A DIFFERENCE OF OPINION WHETHER IT WAS A LON G TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN. THE ASSESSEE ALSO OFFERED EXPLANATIO N TO SUBSTANTIATE WITH RELEVANT RECORD. EXPLANATION-1 TO THE IMPUGNED SECTION COME S INTO OPERATION WHEN ANY MATERIAL FACT, WHILE COMPUTING THE INCOME IS FOUND ABSENT OR THERE IS A FAILURE ON THE PART OF THE ASSESSEE OR THE ASSESSEE OFFERS NO EXPL ANATION. MERE NON-ACCEPTANCE OF EXPLANATION, OFFERED BY THE ASSESSEE, CANNOT FORM T HE BASIS OF THE SATISFACTION OF THE ASSESSING OFFICER TO THE EFFECT THAT THE ASSESSEE H AS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THE HONBLE APEX COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD., 322 ITR 158 (SC) CLEARLY COMES TO THE RESCUE OF THE ASSESSEE. HONBLE DELHI HIGH COURT IN THE CASE OF BACARDI MARTINE INDIA LIMITED, 288 ITR 585 HELD THA T MERELY BECAUSE THERE WAS DIFFERENCE OF OPINION BETWEEN THE ASSESSEE AND THE A.O. IT CANNOT BE SAID THAT THE ASSESSEE HAD INTENTION TO CONCEAL HIS INCOME. IN T HE PRESENT APPEAL ALSO THERE WAS A DIFFERENCE OF OPINION BETWEEN THE MEMBERS OF THE TR IBUNAL. TOTALITY OF FACTS ARE CLEARLY INDICATIVE THAT THE ASSESSEE NEITHER CONCEA LED ITS INCOME NOR FURNISHED ITA NO.07/AGRA/2014 A.Y. 2003-04 4 INACCURATE PARTICULARS OF INCOME. ALL THE FACTS RE LATING TO INTERNAL AGREEMENT TO SELL THE PROPERTY, RECEIPT OF SALE CONSOLIDATION, REGIST RATION OF DOCUMENTS ETC. WERE DULY DISCLOSED AND THE DISPUTE AROSE ONLY WITH RESPECT T O POSSESSION OF THE PROPERTY GIVEN TO THE PURCHASER. THE HONBLE APEX COURT IN THE C ASE OF RELIANCE PETRO PRODUCTS (SUPRA) DULY EXAMINED THE VALIDITY OF IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE ONLY DOCUMENT, WHERE ASSESSEE FURN ISHES THE PARTICULARS OF INCOME IS THE STAGE WHILE FILING THE RETURN. UNDISPUTEDLY, THE ASSESSEE FURNISHED ALL THE DETAILS OF HIS EXPENDITURE AS WELL AS INCOME IN ITS RETURN WHICH WERE NOT FOUND INACCURATE, THUS IT CANNOT BE SAID THAT THE ASSESSE E CONCEALED HIS INCOME. IT IS UPTO THE ASSESSING AUTHORITY TO ACCEPT THE CLAIM OR DENY THE SAME. EVEN IF ANY EXPENDITURE IS CLAIMED BY THE ASSESSEE WHICH IS NOT ACCEPTABLE TO THE REVENUE ITSELF WOULD NOT AMOUNT TO CONCEALMENT. OUR VIEW IS FORTI FIED BY THE AFORESAID DECISION IN RELIANCE PETRO PRODUCTS PVT. LTD. FROM HONBLE APEX COURT. IT IS FURTHER NOTICED THAT THE A.O. HAS NOT BROUGHT ON RECORD ANY MATERIA L EVIDENCING THAT THE DISCLOSED DETAILS BY THE ASSESSEE, RELATING TO SALE, WERE FAL SE. THE ADDITION WAS MADE BY THE A.O. BECAUSE OF DIFFERENCE OF OPINION WHETHER THE D ISCLOSED CAPITAL GAIN IS LONG TERM OR SHORT TERM. THUS, THE INTERPRETATION TAKEN BY T HE ASSESSEE CANNOT BE SAID TO BE WITHOUT BASIS MORE SPECIFICALLY WHEN THERE WAS A DI FFERENCE OF OPINION BETWEEN THE MEMBERS OF THE TRIBUNAL. IN VIEW OF THIS FACT, THE ASSESSEE CANNOT BE VISITED WITH PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE R ATIO LAID DOWN BY HONBLE PUNJAB & HARYANA HIGH COURT IN HARI GOPAL SINGH VS. CIT, 2 58 ITR 85 AND ASAIB SINGH & ITA NO.07/AGRA/2014 A.Y. 2003-04 5 CO. 253 ITR 630 FURTHER SUPPORTS THE CASE OF THE AS SESSEE. CONCEALMENT REFERS TO A DELIBERATE ACT ON THE PART OF THE ASSESSEE. THE HO NBLE MADHYA PRADESH HIGH COURT IN CIT VS. SKYLINE AUTO PRODUCTS PVT. LTD., 271 ITR 335 (M.P.) EVEN WENT TO THE EXTENT THAT WHEN MISTAKE IS BONAFIDE NO PENALTY IS LEVIABLE UNDER SECTION 271(1)(C)OF THE ACT. IN VIEW OF THIS CLEAR FACT AND THE JUDICI AL PRONOUNCEMENT DISCUSSED HEREINABOVE, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LD. CIT(A). IT IS AFFIRMED. 4. FINALLY, THE APPEAL OF THE REVENUE IS HAVING NO MERIT, CONSEQUENTLY, DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.06.2014 SD/- SD/- (PRAMOD KUMAR) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 06 TH JUNE, 2014 PBN/* COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY