PRDEEP KUMAR JAIN, Alwar V. ITO, Alwar

ITA 755/JPR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5360 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 03-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Keywords: Sale consideration of property below Jantri Value; Revised return
• Section: 143(3); 50C; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 755/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI PRADEEP KUMAR JAIN 276, BASANT VIHAR, SCHEME NO.3 ALWAR CUKE VS. THE ITO WARD- 1(4) ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ADTPJ 0630 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA , JCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27/01/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 23 /03/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(A), ALWAR, DATED 26-07-2013 FOR THE ASSESSMENT YEAR 2008-09 WHEREIN THE SOLITARY GROUND RAISED BY THE ASSESSEE IS AS UNDER:- THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN C ONFIRMING THE LEVY OF PENALTY OF RS. 1,30,696/- IMPOSED BY TH E AO U/S 271(1)( C) OF THE I.T. ACT, 1961. ITA NO. 755/JP/2013 SHRI PRADEEP KUMAR JAIN VS. ITO, WARD- 1(4), ALWAR . 2 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ADDITION I N QUESTION WAS MADE AS A RESULT OF DIFFERENCE BETWEEN THE DECLARED VALUE O F THE PROPERTY AND THE VALUE ADOPTED FOR STAMP DUTY PURPOSES ON THE SALE O F OWNERSHIP OF THE PROPERTY. THE DIFFERENCE WAS ADDED VIDE ASSESSMENT U/S 143(3) / 148 OF THE ACT. THE AO IMPOSED PENALTY RELYING ON FOLLOWIN G HON'BLE JURISDICTIONAL HIGH COURT ORDERS. (1) CIT VS. MOHD. MOHTRAM FAROOQI, 259 ITR 132 (R AJ.) (2) BADRI PRASAD OM PRAKASH VS. CIT 163 ITR 440 ( RAJ.) 2.2 IN FIRST APPEAL, THE LD. CIT(A) CONFIRMED THE P ENALTY BY FOLLOWING OBSERVATIONS. 4.5 IT HAS BEEN HELD BY HON'BLE HIGH COURT OF PUNJAB & HARYANA IN THE CASE OF PREM PAL GANDHI VS. CIT 335 ITR 23 THAT LEVY OF PENALTY IS JUSTIFIED, EVEN IF REVISED RETURN SHOWING HIGHER INCOME HAS BEEN FILED AFTER D ETECTION OF THE SAME BY THE INCOME TAX DEPARTMENT. HON'BLE DELHI HIGH COURT IN ITS ORDER DATED 22 ND JANUARY 2013 IN THE CASE OF CIT VS. MAK DATA LTD. REPORTED IN 87 DTR 172 HAS UPHELD THE LEVY OF PENALTY U/S 271(1)( C) IN A CASE WHERE INCOME HAS BEEN SURRENDERED WITH VIEW TO AVOID LITI GATION AND BUY PEACE. 2.3 AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 2.4 THE LD. AR OF THE ASSESSEE VEHEMENTLY CONTENDS THAT IT IS WELL SETTLED LAW THAT PENALTY U/S 271(1)( C) OF THE ACT IS NOT IMPOSABLE IF THE DIFFERENCE OF THE INCOME ASSESSED IS ONLY DUE TO A DOPTION OF STAMP DUTY ITA NO. 755/JP/2013 SHRI PRADEEP KUMAR JAIN VS. ITO, WARD- 1(4), ALWAR . 3 VALUATION U/S 50C OF THE ACT, AS THE APPLICABILITY OF DLC VALUE IS BY WAY OF A STATUTORY FICTION. REVENUE HAS FAILED TO ESTAB LISH THAT THE ASSESSEE HAS ACTUALLY RECEIVED ANY MONEY OVER AND ABOVE THE OSTE NSIBLE CONSIDERATION OF SALE. THE LD. AR OF THE ASSESSEE RELIED ON FOLLO WING CASE LAWS. (I) ANITA BENIWAL VS. ITO (JPR.) (TRIB) (ITA NO. 743/JP/2012 A.Y. 2008-09 ORDER DATED 5-06-2015) (II) CHIMANLAL MANILAL PATEL VS. ACIT (2012) 33 CCH 647 (AHD TRIBUNAL) (III) CIT VS. MADAN TEATRES LTD. (2013) 88 DTR 217 (KOL.)HC (IV) HARISH VOOVAYA SHETTY & ORS. VS. ITO (MUM- TRIBUNAL) ITA NO. NO.6383/MUM/2012 ORDER DATED 3-07 - 2014) (V) CIT VS. FORTUNE HOTELS AND ESTATES (P) LTD. (20 15) 232 TAXMAN 481 (BOM.)(H.C) 2.5 THE LD. DR SUPPORTED THE ORDER OF THE LOWER AUT HORITIES. 2.6 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND FROM THE RECORD THAT DI FFERENCE IN VALUATION BETWEEN THE SALE DEED AND DLC RATES AND TAXING INCO ME AS TO FICTION OF SECTION 50C OF THE ACT, NO EVIDENCE HAS BEEN BROUGH T ON RECORD THAT THE ASSESSEE HAS RECEIVED ANY MONEY OVER AND THE ABOVE THE ACTUAL SALE CONSIDERATION. IT IS WELL SETTLED LAW THAT OPERATIO N OF FICTION IS LIMITED TO ITA NO. 755/JP/2013 SHRI PRADEEP KUMAR JAIN VS. ITO, WARD- 1(4), ALWAR . 4 THE PROVISION WHERE IT IS CREATED. IN VIEW THEREOF, I FIND MERIT IN THE CONTENTIONS OF THE LD. AR THAT FICTION OF SECTION 5 0C CANNOT BE AUTOMATICALLY APPLIED FOR IMPOSITION OF PENALTY. MO RE SO, WHEN NOTHING IS BROUGHT ON RECORD TO SUGGEST IN ANY WAY THAT THE AS SESSEE HAS RECEIVED ANY OWN MONEY. IN VIEW THEREOF, THE PENALTY IMPOSED U/S 271(1) OF THE ACT IS DELETED AS IT IS NOT A FIT CASE FOR IMPOSITI ON OF PENALTY U/S 271(1) OF THE ACT. THUS THE APPEAL OF THE ASSESSEE IS ALLO WED. 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D ORDER PRONOUNCED IN THE OPEN COURT ON 23 /03/20 16. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23 /03/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI PRADEEP KUMAR JAIN, ALWAR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 1(4), ALWAR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 755/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR ITA NO. 755/JP/2013 SHRI PRADEEP KUMAR JAIN VS. ITO, WARD- 1(4), ALWAR . 5