Assistant Commissioner of Income-Tax,Circle-2, Nagpur V. M/s. Jabalpur Sheetgriha Private Limited, Nagpur

ITA 7/NAG/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1909 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R KIRTANE
• Keywords: Difference of opinion

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI RAJENDRA , A M ITA NO. 07 / N AG / 20 1 2 ( ASSESSMENT YEAR : 200 7 - 0 8 ) ACIT, CIR - 2, NAGPUR - 440 001 VS. M/S JABALPUR SHEETGRIHA PVT. LTD., G - 10, ANJUMAN BUILDING, ALOK AGENCY, SADAR, NAGPUR PAN/GIR NO. : A AJCS 2672 L ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : MR. S.R.KIRTANE /ASSESSEE BY : MR. K.P.DEWANI DATE OF HEARING : 2 3 RD JAN ., 201 3 DATE OF PRONOUNCEMENT : 1 ST FEB ,201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH E DEPARTMENT HAS PREFERRED THIS APPEAL BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAINST THE ORDER OF LEANED CIT (A) - I , NAGPUR (MAHARASHTRA) , WHICH HAS BEEN HEARD THROUGH E - COURT, MUMBAI . 2 . THE DEPARTMENT IN ITS APPEAL HAS RAISE D OBJECTION AGAINST THE ACTION OF THE LEARNED CIT(A) , WHO CANCELLED THE LEVY OF PENALTY RELATING TO ASSESSMENT YEAR 2007 - 08. ITA NO . 07 /20 1 2 2 3 . THE RETURN OF INCOME WAS COMPLETED AT AN INCOME OF RS. 1,69,07,850/ - , WHICH INC LUDES CLAIM OF STRUCTURE OF RS.1,06,57,712/ - , EXCESS COST OF LAND OF RS. 17,00,000/ - AND CONSENT MONEY OF RS. 20, 00,000/ - . THE AO WHILE COMPLETING THE ASSESSMENT HELD THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE THE PAYMENT OF RS. 20 LAKHS GIVEN AS CONSENT MONEY AND THEREFORE LIABLE FOR PENALTY. THE AO ALSO HELD THAT THE ASSESSEE HAS CLAIMED DEDUCTION IN RESPECT OF INDEXED COST OF STRUCTURE AT RS. 1,06,57,712/ - WHILE COMPUTING CAPITAL GAIN AND ASSESSEE IS NOT ELIGIBLE FOR THE SAME. AS REGARDS THE COST OF LAND OF 14000 SQ.FT., WHICH WAS NOT ACTUALLY SOLD AND IS EQUIVALENT TO RS. 17,38,000/ - WAS ALSO TREATED AS CONCEALED INCOME. THEREFORE, THE AO HELD THAT PENALTY IS LEVIABLE ON THIS AMOUNT @150%. 4 . AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND PERUSING THE MATERIAL ON RECORD, LEARNED CIT(A) HELD THAT ALL THESE AMOUNTS WERE DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME, THEREFORE, PENALTY IS NOT LEVIABLE. LEARNED CIT(A) ALSO OBSERVED THAT THIS IS A DIFFERENCE OF OPINION AND THEREFORE, FOR THAT REASON ALSO PENALTY IS NOT LEVIABLE. RELIANCE WAS PLACED ON THE DECISION O F THE HON BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD., 322 ITR 158 (SC) . ACCORDINGLY, THE CIT(A) CANCELLED THE LEVY OF PENALTY. 5 . AGGRIEVED THEREBY, THE DEP ARTMENT IS IN APPEAL HERE BEFORE THE TRIBUNAL. ITA NO . 07 /20 1 2 3 6 . LEARNED DR PLACED RELIANCE ON THE ORDER OF THE AO. ON THE OTHER HAND, LEARNED COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE ORDER OF LEARNED CIT(A) . ON A QUERY FROM THE BENCH, LEARNED AR STATED THAT THE MATTER HAS BEEN SET ASIDE TO THE FILE OF THE AO FOR QUANTIFICATION OF THE TAX CORRECTLY . IT WAS FURTHER STATED THAT SINCE THE ASSESSEE HIMSELF DISCLOSED THE AMOUNT IN THE RETURN OF INCOME, THEREFORE, PENALTY WAS NOT LEVIABLE. THE AO WAS OF THE DIFFERENT VI EW, THEREFORE, HE HELD THAT THE ASSESSEE HAS FILED INCORRECT PARTICULARS WHEREAS NO INCORRECT PARTICULARS HAVE BEEN FILED. ACCORDINGLY, IT WAS STATED THAT LEARNED CIT(A) IS JUSTIFIED IN CANCELLING THE PENALTY. 7 . AFTER CONSIDERING THE SUBMISSION AND PERUS ING THE MATERIAL ON RECORD, WE FOUND THAT THE CANCELLATION OF LEVY OF PENALTY AT THE RATE OF 150% BY THE LEARNED CIT(A) IS JUSTIFIED. WE FURTHER NOTED THAT EVEN ON THE MERIT THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF THE AO FOR CORRECT COMPUTATION OF TAX. SINCE THE MATTER HAS ALREADY BEEN SET ASIDE AND THE LEARNED CIT(A) HAS ALREADY HELD THAT THE PENALTY IS NOT LEVIABLE IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD (SUPRA ) , THEREFORE, WE HOLD THAT CANCE LLATION OF LEVY OF PENALT Y WAS JUSTIFIED AT THE END OF T HE LEARNED CIT(A) . ACCORDINGLY, WE CONFIRM THE CANCELLATION OF LEVY OF PENALTY. HOWEVER, IF THE QUANTUM ISSUE HAS BEEN SET ASIDE TO PASS A FRESH ORDER, THEN THE AO IS FREE TO LEVY A PENALTY WHILE PASS ING THE FRESH ASSESSMENT ORDER. 8 . IN THE RESULT , APPEAL OF THE DEPARTMENT IS DISMISSED . ITA NO . 07 /20 1 2 4 ORDER PRONOUNCED IN THE E - COURT ON THIS 1 ST DAY OF F EB. , 201 3 . - 201 3 SD/ - SD/ - ( ) ( RAJENDRA ) ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 0 1 / 0 2 / 201 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR , ITAT, MUMBAI / NAGPUR . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI