SHRI Aziz Akhtar , Bhopal V. ITO 4(4) , Bhopal, Bhopal

ITA 745/Ind/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8525 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 10-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: N D PATWA S
• Keywords: Sale consideration of property below Jantri Value; Reassessment proceedings
• Section: 271(1)(c); 201; 148

Judgement Text

AZIZ AKHTAR ITA NO.745/IND/2018 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO. 745/IND/2018 ASSESSMENT YEAR 2008-09 REVENUE BY SHRI K. G . GOYAL SR.DR ASSESSEE BY S/ S HRI ASHISH GOYAL AND N.D. PATWA,ADVOCATES DATE OF HEARING 09 . 1 0 . 201 9 DAT E OF PRONOUNCEMENT 11 . 10. 201 9 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL IS FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2008-09 AND IS DIREC TED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- 2 (IN SHORT LD.CIT(A)], BHOPAL DATED 24.07.2018 WHICH ARE ARI SING OUT OF THE ORDER U/S 271(1)(C) OF THE INCOME TAX ACT 1961(IN S HORT THE ACT) DATED 03.06.2016 FRAMED BY ITO-4(4), BHOPAL. 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; SHRI AZI Z AKHTAR, HOUSE NO.22, FIRE STATION ROAD, FAREHGARH, BHOPAL VS. ITO - 4(4) BHOPAL ( APPELLANT ) (RESPONDENT ) PAN A FIPA3928A AZIZ AKHTAR ITA NO.745/IND/2018 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE : - 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ORDER OF PENALTY, WHICH IS VOID-AB-INITIO, INVALID, UNJUSTIFIED, BARRED BY LIMITATION AND THEREFORE LIABLE TO BE QUASHED. 2. THE LD. CIT(A) DID NOT PROVIDE PROPER AND MEANINGFU L OPPORTUNITY OF BEING HEAD TO THE APPELLANT. 3. THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE LEVY OF PENALTY U/S 271(1)(C) OF RS.65,000/-. THE APPELLANT CARVES LEAVE TO ADD, AMEND OR MODIFY ANY OF THE GROUNDS OF APPEAL. 3. THE SOLE GRIEVANCE OF THE ASSESSEE IS AGAINST TH E LEVY OF PENALTY IMPOSED U/S 271(1)(C) OF THE ACT AT RS.65,000/-. 4. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL EARNING INCOME FROM SALAR Y. INCOME OF RS.2,06,266/- DECLARED IN THE RETURN OF INCOME FILE D ON 26.5.2008. AS PER THE AIR INFORMATION LD. A.O OBSERVED THAT DU RING THE FINANCIAL YEAR 2007-08 AN IMMOVEABLE PROPERTY WAS S OLD ON 14.8.2007 AND THE VALUE AS PER STAMP VALUATION AUTH ORITY IS RS.30,36,000/-. BASED ON THIS INFORMATION NOTICE U /S 148 OF THE ACT WAS SERVED UPON THE ASSESSEE FOR RE-OPENING THE ASSESSMENT. DURING THE COURSE OF REASSESSMENT PROCEEDINGS ASSES SEE FILED THE RETURN OF INCOME IN COMPLIANCE TO NOTICE U/S 148 OF THE ACT ON AZIZ AKHTAR ITA NO.745/IND/2018 3 06.11.2015 AND DECLARED INCOME OF RS.2,89,726/- AFT ER INCLUDING THE ALLEGED TRANSACTION OF SALE OF IMMOVEABLE PROPE RTY. DURING THE COURSE OF REASSESSMENT PROCEEDINGS WHEN THE ASSESSE E WAS CONFRONTED WITH THE ALLEGED SALE CONSIDERATION OF R S.30,36,000/- FROM SALE OF IMMOVEABLE PROPERTY THE ASSESSEE CHALL ENGED THE VALUATION AND ALSO SUBMITTED THAT HE IS ONLY HAVING 33.33% OWNER IN THE SAID PROPERTY. LD. A.O ACCEPTED THE REQUEST OF THE ASSESSEE AND REFERRED THE MATTER TO THE DEPARTMENTAL VALUATI ON OFFICER U/S 50C(2) OF THE ACT, WHO VALUED THE PROPERTY AT RS.16 ,61,500/-. THIS VALUATION WAS ACCEPTED BY THE ASSESSEE AND LONG TER M CAPITAL GAIN WAS RECOMPUTED AND ADDITION OF RS.1,53,833/- W AS MADE THEREBY ASSESSING INCOME AT RS.4,43,559/-. 5. ON THIS ADDITION PENALTY PROCEEDINGS U/S 271 (1)(C) OF THE ACT WERE INITIATED AND THEREAFTER PENALTY WAS LEVIED AT RS.65,000/- AFTER CONSIDERING THE SUBMISSIONS FILED BY THE ASSE SSEE. 6. AGAINST THE LEVY OF PENALTY ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) BUT FAILED TO SUCCEED. 7. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TR IBUNAL CHALLENGING AZIZ AKHTAR ITA NO.745/IND/2018 4 THE ORDER OF LD. CIT(A) CONFIRMING THE PENALTY OF R S.65,000/- LEVIED U/S 271(1)(C) OF THE ACT. 8. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE DULY REVISED THE INCOME BEFORE THE CONCLUSION OF REASSES SMENT PROCEEDINGS AND HAS SHOWN THE TRANSACTION. IT WAS ALSO SUBMITTED THAT THE SALE CONSIDERATION HAS BEEN DULY REFLECTED IN THE INCOME TAX RETURN AND THE PENALTY HAS BEEN LEVIED MERELY F OR THE DIFFERENCE IN SALE CONSIDERATION ESTIMATED BY LD. DEPARTMENTAL VALUATION OFFICER. HOWEVER NO CONCEALMENT OF PARTICULARS OF INCOME OR INACCURATE PARTICULARS OF INCOME HAVE BEEN MADE ON THE PART OF THE ASSESSEE AND THEREFORE THE PENALTY IS LIABLE TO BE DELETED. RELIANCE WAS PLACED ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT(AHMEDABAD) V/S RELIANCE PETRO PRODUCTS LTD C IVIL APPEAL NO.2463/2010 DATED 17.3.2010. 9. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VE HEMENTLY ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 10. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE GRIEVANCE OF THE ASSESSEE IS SOLELY CENTERED AZIZ AKHTAR ITA NO.745/IND/2018 5 AROUND THE LEVY OF PENALTY IMPOSED U/S 271(1)(C) OF THE ACT AT RS.65,000/-. THE SAID PENALTY HAS BEEN LEVIED ON T HE ADDITION MADE ON ACCOUNT OF DIFFERENCE BETWEEN THE SALE CON SIDERATION SHOWN BY THE ASSESSEE IN THE RETURN OF INCOME FILED IN COMPLIANCE TO NOTICE ISSUED U/S 148 OF THE ACT AND THE VALUE A DOPTED BY THE DEPARTMENTAL VALUATION OFFICER U/S 50C(2) OF THE AC T. 11. WE OBSERVE THAT THE SALE CONSIDERATION SHOW N BY THE ASSESSEE IN THE INCOME TAX RETURN WAS AT RS.12,00,0 00/-. VALUE TAKEN BY THE STAMP VALUATION AUTHORITY IN THE REGIS TERED SALE DEED IS RS.30,36,000/-. THE DEPARTMENTAL VALUATION OFFI CER VALUED THE SAME PROPERTY AT RS.16,61,500/-. THE ASSESSEE HAS OBJECTED THE VALUE OF THE PROPERTY OF RS.30,36,000/- BUT SUBSEQU ENTLY ACCEPTED THE VALUATION DONE BY DEPARTMENTAL VALUATION OFFICE R AND OFFERED THE INCOME FOR TAX CALCULATED ACCORDINGLY. 12. WE FIND THAT THE ADDITION HAS BEEN MADE ON THE ESTIMATED VALUATION OF THE PROPERTY. ASSESSEE HAS DULY DISCL OSED THE TRANSACTION IN THE INCOME TAX RETURN. THE VALUATIO N ADOPTED BY STAMP VALUATION AUTHORITY AT RS.30,36,000/- WHEREAS THE DEPARTMENTAL VALUATION OFFICER VALUED MUCH LOWER I. E. AT AZIZ AKHTAR ITA NO.745/IND/2018 6 RS.16,61,500/-. THIS FACT ITSELF SHOW THAT THE ADD ITION HAS BEEN MADE ON THE ESTIMATED INCOME. 13. AT THIS JUNCTURE WE WOULD LIKE TO REFER TO THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT(AHMEDABAD) V/S RELIANCE PETRO PRODUCTS LTD (SUPRA) WHEREIN HON'BLE COURT WHILE DEALING WITH THE ISSUE OF LEVY OF PENALTY U/S 271(1)(C) OF THE A CT DECIDED AGAINST THE REVENUE OBSERVING THAT A MERE MAKING OF THE CLAIM WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO F URNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. S UCH CLAIM MADE IN THE RETURN CANNOT AMOUNT TO THE INACCURATE PARTICUL ARS. HON'BLE SUPREME COURT FURTHER OBSERVED THAT SINCE THE ASSES SEE HAS ALREADY FURNISHED ALL THE DETAILS OF ITS EXPENDITURE AS WEL L AS INCOME IN ITS RETURN, WHICH DETAILS, IN THEMSELVES, WERE NOT FOUN D TO BE INACCURATE NOR CAN BE VIEWED AS CONCEALMENT OF INCOME ON ITS P ART, IT WAS UP TO THE AUTHORITIES TO ACCEPT ITS CLAIM IN THE RETURN O F NOT. MERELY BECAUSE THE ASSESSEE HAD CLAIMED THE EXPENDITURE, WHICH CLA IM WAS NOT ACCEPTED OR WAS NOT ACCEPTABLE TO REVENUE, THAT BY ITSELF WOULD NOT, IN OUR OPINION, ATTRACT THE PENALTY U/S 271(1)(C) AZIZ AKHTAR ITA NO.745/IND/2018 7 14. WE THEREFORE RESPECTFULLY FOLLOWING THE AB OVE JUDGMENT AS WELL AS IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE OF THE CONSIDERED VIEW THAT LD. A.O WAS NOT JUSTIFIED IN L EVYING THE PENALTY U/S 271(1)(C) OF THE ACT ON THE ASSESSEE ON THE AD DITION MADE ON THE BASIS OF ESTIMATED VALUATION OF THE IMMOVEABLE PROPERTY CARRIED OUT U/S 50C(2) OF THE ACT. WE ACCORDINGLY DELETE T HE PENALTY OF RS.65,000/- AND ALLOW THE APPEAL OF THE ASSESSEE. 15. IN THE RESULT APPEALS OF THE ASSESSEE IS AL LOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11.10.2 019. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 11 OCTOBER 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE