ELCOME MARINE SERVICES P. LTD, MUMBAI V. DCIT 62), MUMBAI

ITA 7432/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8963 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 29-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KRISHNAMOORTHY
• Assessee Lawyers: ASHOK PURI
• Keywords: Sale consideration of property below Jantri Value; Difference of opinion
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH: MUMBAI BEFORE SHRI R.S. SYAL, ACCOUTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. 7432/MUM/2010 (ASSESSMENT YEAR : 2004-05) ELCOME MARINE SERVICES PVT. LTD., G-3, ARIHANT BUILDING, AHMEDABAD STREET, CARNAC BUNDER, MUMBAI -400 009 PAN: AAACE 1249 M VS. DEPUTY COMMISSIONER OF INCOME- TAX -6(2), AAYAKAR BHAVAN, INCOME TAX OFFICE, QUEENS ROAD, MUMBAI APPELLANT RESPONDENT APPELLANT BY : SHRI ASHOK PURI RESPONDENT BY : SHRI V.K. KRISHNAMOORTHY DATE OF HEARING :28.08.2012 DATE OF PRONOUNCEMENT :05.09.2012 O R D E R PER VIVEK VARMA, JM: THE INSTANT APPEAL IS DIRECTED THE ORDER OF CIT (A) , 12, MUMBAI, DATED 06.08.2010, SUSTAINING THE LEVY OF PENALTY U/S 271( 1)(C) AT RS 1,28,548. 2. THE FACTS ARE THAT THE ASSESSEE SOLD A PROPERTY IN THE BLOCK OF ASSETS AND ON WHICH SORT TERM CAPITAL GAIN WAS WORKED OUT AT RS 3,51,979, WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE. ACCORDING TO THE STAMP DUTY VALUATION VALUE CAME TO RS. 32,05,020 AGAINST RS. 2 6,00,000, ACCORDINGLY THE CLOSING WDV WAS COMPUTED AT RS. 3,51,979 IN PLA CE OF RS. 2,46,715, SHOWN BY THE ASSESSEE. 3. ON THIS DIFFERENCE, THE AO INITIATED PENALTY PRO CEEDINGS, AFTER THE CIT (A) HAD CONFIRMED THE ADDITION. ELCOME MARINE SERVICES PVT. LTD. ITA NO.7432/MUM/2010 2 4. IN THE PENALTY PROCEEDINGS AS WELL, THE CIT (A), SUSTAINED THE LEVY OF PENALTY. 5. AGGRIEVED, THE ASSESSEE IS NOW BEFORE THE ITAT. 6. BEFORE US, THE AR PLEADED THAT IT WAS A CASE OF DIFFERENCE OF OPINION AND COMPUTATION, AND NOT A CASE OF CONCEALMENT OR F URNISHING OF INACCURATE PARTICULARS OF INCOME, BECAUSE NO MATERIAL EVIDENCE HAD BEEN WITHHELD BY THE ASSESSEE. 7. THE DR STRONGLY SUPPORTED THE ORDER OF THE REV ENUE AUTHORITIES THAT IT WAS A CLEAR CASE OF VIOLATION OF STATUTORY PROVISIO NS OF SECTION 50C OF THE INCOME TAX ACT. 8. WE HAVE HEARD THE ARGUMENTS AND WE HAVE TO ACCEP T THAT THIS IS NOT THE CASE WHERE ANY MATERIAL EVIDENCE HAS BEEN WITHH ELD FOR THE PURPOSE AND INTENT OF CONCEALMENT OF INCOME. THIS IS ONLY A CAS E OF AN ALTERNATE CALCULATION U/S 50C. 9. IN A CASE LIKE THIS, PENALTY IS NOT EXIGIBLE AND IS COMPLETELY FORTIFIED BY THE DECISION OF HONBLE SUPREME COURT OF INDIA IN T HE CASE OF RELIANCE PETROPRODUCTS PRIVATE LTD. REPORTED IN 322 ITR 158, WHEREIN THE HONBLE APEX COURT HAS SAID A MERE DISALLOWANCE ON NON ACCE PTANCE CANNOT LEAD TO THE LEVY OF PENALTY. HONBLE SUPREME COURT IN THE CASE OF SHRI KRISHNA ELECTRICALS VS STATE OF TAMIL NADU, REPORTED IN 23 VST 249 ALSO SUPPORTS THE SIMILAR CIRCUMSTANCE. 10. RESPECTFULLY FOLLOWING THE DECISIONS OF THE HON BLE SUPREME COURT WE DO NOT FIND ANY SUSTAINABLE GROUND FOR THE LEVY OF PENALTY. 11. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT ( A) AND CANCEL THE PENALTY LEVIED BY THE AO. ELCOME MARINE SERVICES PVT. LTD. ITA NO.7432/MUM/2010 3 12. GROUND NO. 2 & 3 SHALL BE GIVEN CONSEQUENTIAL E FFECT WHEN THE PENALTY IS CANCELLED BY THE AO. HELD ACCORDINGLY. THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 0 5/09/2012 SD/- ( R.S. SYAL ) ACCOUTANT MEMBER SD/- (VIVEK VARMA) JUDICIAL MEMBER MUMBAI, DATE: 05/09/2012 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-12, MUMBAI. 4) THE CIT, CITY -6, MUMBAI. 5) THE D.R. E BENCH, MUMBAI. 6) COPY TO GUARD FILE. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN