SHAILA D SHAH, MUMBAI V. ITO 22(2)(3), NAVI MUMBAI

ITA 7293/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8857 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 26-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.7293/MUM/2013 (ASSESSMENT YEAR: 2009-10) SMT. SHAILA D. SHAH VS. INCOME TAX OFFICER - 22 (2) (3) 1101, NANDADEVI, NEELKANTH VALLY, GHATKOPAR (E) MUMBAI 401077 VA SHIU RAILWAY STATION NAVI MUMBAI PAN AAIPS3644L APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI V. JUSTIN DATE OF HEARING: 01.11.2017 DATE OF PRONOUNCEMENT: 01.11.2017 O R D E R PER PAWAN SINGH, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-33, MUMBAI DATED 27.09.2013 FOR A.Y. 2009-10 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APP EAL: - 1. HON'BLE CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS.1,16,583/- U/S. 271(1)(C) WITHOUT CONSIDERING THE MERITS OF TH E CASE THAT ADDITION WAS MADE UNDER DEEMING PROVISION OF SEC. 5 0C OF THE INCOME TAX ACT, 1961. HON'BLE CIT(A) OUGHT TO HAVE CONDONED THE DELAY IN FILING APPEAL AND OUGHT TO HAVE CONSIDERED THE CASE ON MERITS. 3. THE BRIEF FACTS OF THE CASE RE THAT THE ASSESSEE F ILED HERE RETURN OF INCOME ON 29.07.2009 DECLARING TOTAL INCOME OF ` 8,40,070/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 28 .12.2011 DETERMINING THE TOTAL INCOME AT ` 13,81,570/-. IN THE RETURN OF INCOME THE ASSESSEE HAS CLAIMED LONG TERM CAPITAL GAIN ON SALE OF PROPERTY. THE ASSESSEE HAS SHOWN ` 11,12,000/- AS SALE CONSIDERATION. THE AO ADOPTED THE VALUE OF PROPERTY AS STAMP VALUATION AT ` 32,78,000/- IN ACCORDANCE WITH THE PROVISIONS OF SECTION 50C OF THE INCOME TA X ACT. THE AO MADE ITA NO. 7293/MUM/2015 SMT. SHAILA D. SHAH 2 ADDITION ON SALE CONSIDERATION AS PER SALE AGREEMEN T AND THE VALUATION OF STAMP VALUATION AUTHORITY. THE AO MADE ADDITION OF ` 7,34,107/- ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE AO LEVIED PE NALTY ON ADDITION OF LONG TERM CAPITAL GAIN. THE AO LEVIED THE PENALTY AT THE RATE OF 100% OF TAX SOUGHT TO BE EVADED. THE AO WORKED OUT THE PENALTY OF RS. 1,16,583/- VIDE ORDER DATED 22.06.2012. ON APPEAL BEFORE THE CIT(A ) THE ORDER OF PENALTY WAS CONFIRMED. FURTHER AGGRIEVED BY THE ORDER OF TH E CIT(A) ASSESSEE HAS FILED THE PRESENT APPEAL. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE GIV ING SUFFICIENT OPPORTUNITY. THEREFORE, WE HAVE NO OPTION BUT TO DE CIDE THE APPEAL AFTER BEARING THE LEARNED D.R. AND PERUSING THE MATERIAL AVAILABLE ON RECORD. ON OUR SPECIFIC QUERY THE LEARNED D.R. FOR REVENUE FAI RLY CONCEDED THAT NO PENALTY IS LEVIABLE ON THE ADDITION MADE BY THE AO ON THE BASIS OF VALUE ADOPTED BY ASSESSING OFFICER AS PER PROVISIONS OF S ECTION 50C OF THE INCOME TAX ACT. THE LEARNED D.R. FURTHER SUBMITTED THAT IN THE CASE OF RENU HINGORANI IN ITA NO. 2210/MUM/2010 SIMILAR PENALTY LEVIED UNDER SECTION 271(1)(C) WAS DELETED BY THE COORDINATE BEN CH OF THE TRIBUNAL. WE APPRECIATE THE FAIRNESS OF THE LEARNED D.R. FOR REV ENUE IN ASSISTING THE BENCH AND IN BRINGING THE CORRECT POSITION OF LAW T O OUR NOTICE. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED D .R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE AO MA DE THE ADDITION ON ACCOUNT OF DIFFERENCE IN THE INDEXED COST OF ACQUIS ITION ON THE DATE OF PURCHASE AND THE STAMP DUTY VALUATION. THE AO MADE ADDITION OF ` 7,34,107/-. WE NOTED THAT THE COORDINATE BENCH OF T HE TRIBUNAL IN THE CASE OF RENU HINGORANI (SUPRA) ON ALMOST SIMILAR FA CTS DELETED THE PENALTY HOLDING AS UNDER: - 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND R ELEVANT RECORD. WE FIND THAT THE AO HAD MADE ADDITION OF RS.9,00,824/ - BEING DIFFERENCE BETWEEN THE SALE CONSIDERATION AS PER SALE AGREEMEN T AND THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY. TH US, THE ADDITION HAS BEEN MADE BY THE AO BY APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT. IT IS EVIDENT FROM THE ASSESSMENT ORDER TH AT THE AO HAS NOT QUESTIONED THE ACTUAL CONSIDERATION RECEIVED BY THE ASSESSEE BUT THE ADDITION IS MADE PURELY ON THE BASIS OF DEEMING PRO VISIONS OF THE INCOME TAX ACT, 1961. THE AO HAS NOT GIVEN ANY FIND ING THAT THE ITA NO. 7293/MUM/2015 SMT. SHAILA D. SHAH 3 ACTUAL SALE CONSIDERATION IS MORE THAN THE SALE CON SIDERATION ADMITTED AND MENTIONED IN THE SALE AGREEMENT. THUS IT DOES N OT AMOUNT TO CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. IT IS ALSO NOT THE CASE OF THE REVENUE THAT THE ASS ESSEE HAS FAILED TO FURNISH THE RELEVANT RECORD AS CALLED BY THE AO TO DISCLOSE THE PRIMARY FACTS. THE ASSESSEE HAS FURNISHED ALL THE RELEVANT FACTS, DOCUMENTS/MATERIAL INCLUDING THE SALE AGREEMENT AND THE AO HAS NOT DOUBTED THE GENUINENESS AND VALIDITY OF THE DOCUMEN TS PRODUCED BEFORE HIM AND THE SALE CONSIDERATION RECEIVED BY T HE ASSESSEE. UNDER THESE FACTS AND CIRCUMSTANCES, IT CANNOT BE S AID THAT THE ASSESSEE HAS NOT FURNISHED CORRECT PARTICULARS OF I NCOME. MERELY BECAUSE THE ASSESSEE AGREED FOR ADDITION ON THE BAS IS OF VALUATION MADE BY THE STAMP VALUATION AUTHORITY WOULD NOT BE A CONCLUSIVE PROOF THAT THE SALE CONSIDERATION AS PER THIS AGREE MENT WAS INCORRECT AND WRONG. ACCORDINGLY THE ADDITION BECAUSE OF THE DEEMING PROVISIONS DOES NOT IPSO FACTO ATTRACT THE PENALTY U/S 271(1)(C ). HENCE IN VIEW OF THE DECISION OF THE HONBLE SUPREME COUR T IN THE CASE OF CIT V/S RELIANCE PETROPRODUCTS PVT. LTD (SUPRA), THE PE NALTY LEVIED U/S 271(1)( C ) IS NOT SUSTAINABLE. THE SAME IS DELETED . 6. CONSIDERING THE DECISION OF THE COORDINATE BENCH AS REFERRED TO ABOVE AND RESPECTFULLY FOLLOWING THE SAME THE PENAL TY LEVIED UNDER SECTION 271(1)(C) VIDE ORDER DATED 22.06.2012 IS DELETED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST NOVEMBER, 2017. SD/ - SD/ - B.R. BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 1 ST NOVEMBER, 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -33, MUMBAI 4. THE CIT CONCERNED 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.