ACIT, Chandigarh V. Smt. Binder Khokhar, Chandigarh

ITA 750/CHANDI/2015

• Counselvise Citation: 75021514 RSA 2015
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGHDR
• Assessee Lawyers: TEJ MOHAN SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NO. 750/CHD/2015 ASSESSMENT YEAR: 2008-09 THE ACIT, VS SMT.BINDER KHOKHAR, CIRCLE 5(1), # 2514, CHANDIGARH. SECTOR 47-C, CHANDIGARH. PAN: AAOPK0089P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANJIT SINGH,D R RESPONDENT BY : SHRI TEJ MOHAN SINGH DATE OF HEARING : 02.11.2015 DATE OF PRONOUNCEMENT : 06.11.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-II CHANDIGARH DATED 02.06.2015 FOR ASSESSMENT YEAR 2008-09, CHALLENGING THE CANCELLATION OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS MEMBER OF HOUSING SOCIETY NAMELY M/S DEFENCE SERVICES COOPERATIVE HOUSE BUILDING SOCIETY, MOHALI WHICH WAS OWNER OF 27.3 ACRES OF LAND IN VILLAGE KA NSAL DISTRICT MOHALI. THE SOCIETY ENTERED INTO TRIPARTIT E JOINT 2 DEVELOPMENT AGREEMENT WITH M/S HUSH BUILDERS (PVT.) LTD. CHANDIGARH AND M/S TATA HOUSING DEVELOPMENT COMPANY LTD., MUMBAI BY VIRTUE OF WHICH THE SOCIETY WOULD TRANSFER ITS LAND FOR DEVELOPMENT IN LIEU OF MONETARY CONSIDERATION AND ALSO CONSIDERATION IN KI ND TO THE MEMBERS OF THE SOCIETY. THE ASSESSEE OWNED 5 00 SQ. YARDS LAND. THE CONSIDERATION FOR ASSESSEE WAS SETTLED PLUS ALLOTMENT OF ONE FLAT. THE ASSESSING O FFICER TAKEN THE TOTAL CONSIDERATION OF TRANSFER OF FLAT F OR THE PURPOSE OF CAPITAL GAINS AND LEVIED THE PENALTY SEPARATELY. THE LD. CIT(APPEALS) DELETED THE PENAL TY. 3. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE ARE OF THE VIEW THE ISSUE IS COVERED BY ORDER OF ITAT CHANDIGARH BENCH IN THE GROUP CASES OF ITO VS MADAN MOHAN MITTAL ETC. IN ITA 696/2014 WHEREBY THE TRIBU NAL VIDE ORDER DATED 16.10.2015 DISMISSED THE DEPARTMEN TAL APPEAL BECAUSE THE QUANTUM ADDITION HAS BEEN DELETE D BY THE HON'BLE HIGH COURT. THE FINDINGS OF THE TRI BUNAL IN PARAS 3 TO 7 OF THIS ORDER ARE REPRODUCED AS UND ER : 3. BRIEFLY THE FACTS IN COMMON, IN ALL THE APPEALS RELATING TO THE LEVY OF PENALTY ARE THAT ASSESSEES ARE MEMBERS OF DIFFERENT HOUSING SOCIETIES CONSISTING OF SEVERAL MEMBERS. THE SOCIETY HAS LAND IN VILLAGE KANSAL, DISTRICT MOHALI. THE SOCIETY ENTERED INTO TRIPARTITE JOINT AGREEMENT WITH M/S HASH BUILDERS PVT. LTD. AND TATA HOUSING DEVELOPMENT COMPANY, MUMBAI BY VIRTUE OF WHICH THE SOCIETY WOULD TRANSFER ITS LAND FOR DEVELOPMENT IN LIEU OF THE 3 MONETARY CONSIDERATION AND ALSO CONSIDERATION IN KIND TO THE MEMBERS OF THE SOCIETY. THE ASSESSEES ARE ALSO MEMBERS OF THEIR SOCIETIES WHO HAVE ENTERED INTO TRIPARTITE AGREEMENT. THE TOTAL CONSIDERATION WAS SETTLED + ALLOTMENT OF ONE FLAT TO THE ASSESSEES. THE ASSESSEES HAVE FURNISHED THEIR RETURN OF INCOME DECLARING SALE CONSIDERATION AND CAPITAL GAINS. THE ASSESSING OFFICER, HOWEVER, NOTED THAT AS PER THE AGREEMENTS, THE ASSESSEES SHALL HAVE TO RECEIVE THE AMOUNT IN CASH AS WELL AS FURNISHED FLAT. THEREFORE, IT HAS MORE MARKET VALUE AND ACCORDINGLY ENHANCED THE INCOME BY ENHANCING THE CAPITAL GAINS BY ADOPTING THE TOTAL AMOUNT AS SALE CONSIDERATION. VIDE SEPARATE ORDER, ASSESSING OFFICER LEVIED THE PENALTIES IN ALL THE CASES AND THE LD. CIT(APPEALS) CANCELLED THE SAME. 4. THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASES OF ALL THESE ASSESSEES HAVE DELETED THE ADDITIONS ON QUANTUM BY FOLLOWING THE JUDGEMENT IN IDENTICAL CASE OF SHRI C.S.ATWAL V CIT. COPIES OF THE JUDGEMENTS OF THE HIGH COURT IN THE CASES OF ALL THE THREE ASSESSEES AND IN THE CASE OF SHRI C.S.ATWAL V CIT ARE PLACED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT IDENTICAL ISSUE WAS CONSIDERED BY ITAT CHANDIGARH BENCH IN THE CASE OF ITO V SHRI BALWINDER SINGH DHILLON IN ITA 1140/2014 FOR ASSESSMENT YEAR 2008-09 AND VIDE ORDER DATED 03.08.2015, THE DEPARTMENTAL APPEAL ON PENALTY HAS BEEN DISMISSED. THE FINDINGS OF THE TRIBUNAL IN PARA 5 ARE REPRODUCED AS UNDER : 4 5. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS OF THE CASE OF ASSESSEE ARE ADMITTEDLY IDENTICAL AS HAVE BEEN DECIDED BY THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI C.S. ATWAL VS CIT, LUDHIANA (SUPRA) IN WHICH THE HON'BLE HIGH COURT DECIDED THE ISSUE OF EXIGIBILITY TO CAPITAL GAIN IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THE CASE OF THE PRESENT ASSESSEE ALSO, THE ASSESSEE HAS, OF HIS OWN FILED ANOTHER RETURN OF INCOME DISCLOSING ALL THE MATERIAL FACTS RELATING TO TRANSFER OF PLOT AND HAS DISCLOSED CAPITAL GAINS ON THE AMOUNT WHICH WAS ACTUALLY RECEIVED DURING THE YEAR UNDER CONSIDERATION. THE DISPUTE WAS LEFT REGARDING TRANSFER OF PLOT AND THE AMOUNT WHICH WAS NOT YET RECEIVED THROUGH THE AGREEMENT TO SELL. THE LD. CIT(APPEALS), THEREFORE, ON PROPER APPRECIATION OF THE FACTS AND MATERIAL ON RECORD, CORRECTLY HELD THAT IT IS NOT A CASE OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE EXPLANATION OF THE ASSESSEE WAS BONAFIDE AND AFTER PASSING THE IMPUGNED ORDER, WHEN THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI C.S.ATWAL VS CIT, LUDHIANA (SUPRA) HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE, WOULD CLEARLY PROVE THAT IT IS NOT A FIT CASE OF LEVY OF THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THEREFORE, WE DO NOT FIND ANY ERROR IN THE ORDER OF LD. CIT(APPEALS) IN DELETING PENALTY. THE DEPARTMENTAL APPEAL FAILS AND IS DISMISSED. 5. THE LD. DR, HOWEVER, RELIED UPON ORDER OF THE ASSESSING OFFICER AND STATED THAT ADDITIONS HAVE BEEN DELETED BY THE HON'BLE HIGH COURT. 6. ON CONSIDERATION OF THE SUBMISSIONS OF PARTIES, WE ARE OF THE VIEW THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY ORDER OF ITAT CHANDIGARH BENCH IN THE CASE OF SHRI BALWINDER SINGH DHILLON IN WHICH, ON IDENTICAL FACTS PENALTY HAS BEEN CANCELLED AND THE DEPARTMENTAL APPEAL HAS BEEN DISMISSED. FURTHER, WHEN HON'BLE HIGH COURT HAS DELETED THE ADDITION IN THE CASES OF ASSESSEES BY FOLLOWING DECISION IN THE CASE OF SHRI 5 C.S. ATWAL V CIT (SUPRA), THEREFORE, NOTHING SURVIVES IN FAVOUR OF THE REVENUE TO LEVY THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IN THE RESULT, THERE ARE NO MERITS IN THE DEPARTMENTAL APPEALS, THE SAME ARE ACCORDINGLY, DISMISSED. 7. IN THE RESULT, ALL DEPARTMENTAL APPEALS ARE DISMISSED. 4. FOLLOWING THE ORDER OF THE TRIBUNAL, WE DISMISS THE DEPARTMENTAL APPEAL BEING ON IDENTICAL FACTS. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA MEHROTRA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6 TH NOV., 2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD