SHRI BHANWAR LAL GEHLOT, KISHANGARH V. INCOME TAX OFFICER, WARD-I, Kishangarh

ITA 760/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1926 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 09-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Sale consideration of property below Jantri Value; Earning of tax free income
• Section: 50C

Judgement Text

ITA NO.760/JP/2017 SHRI BHANWAR LAL GEH LOT VS ITO, WARD- 1, KISHANGARH 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 760/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI BHANWAR LAL GEHLOT VINAYAK NAGAR-C, JAIPUR ROAD MADANGANJ, KISHANGARH CUKE VS. THE ITO WARD-1 KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AHHPG 5494 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI MANISH AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/11/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /11/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-, AJMER DATED 23-08-2017 FOR THE ASSESSMENT YEAR 2008-09 RA ISING THEREIN FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING PENALTY OF RS. 1,63,241/ - LEVIED BY THE AO U/S 271(1)(C) OF THE I.T. ACT, 1961 ARBITRARILY. APPELL ANT PRAYS PENALTY SO CONFIRMED DESERVES TO BE DELETED. 2. THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRM ING PENALTY LEVIED BY THE AO IN RESPECT OF ADDITION, WHICH WAS ALREADY ALLOWED BY HON'BLE ITAT I.E. EVEN BEFORE PASSING PENALTY ORDER, THUS PENALTY LEV IED BY AO IS NOT IN ACCORDANCE WITH LAW AND DESERVES TO BE DELETED. ITA NO.760/JP/2017 SHRI BHANWAR LAL GEH LOT VS ITO, WARD- 1, KISHANGARH 2 2.1 APROPOS GROUND NO.1 AND 2 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 4.2 I HAVE GONE THROUGH THE PENALTY ORDER, STATEM ENT OF FACTS AND GROUNDS OF APPEAL CAREFULLY. IT IS SEEN FROM TH E PENALTY ORDER THAT THE AO WHILE COMPLETING THE ASSESSMENT HAD MADE ADD ITION OF RS. 5,95,000/- IN RESPECT OF SHORT TERM CAPITAL GAIN NO T DECLARED BY THE APPELLANT ON SALE OF AGRICULTURAL LAND SITUATED AT TABIJI, AJMER AND 50% OF AGRICULTURAL INCOME OF RS. 56,120/- WAS TREA TED BY THE AO AS INCOME FROM OTHER SOURCES. THE ADDITIONS MADE BY TH E AO WERE CONFIRMED BY THE CIT (A) VIDE HIS ORDER DATED 30-0 4-2014 (APPEAL NO. 228/2011-12). THE APPELLANT HAS NOT FURNISHED A NY WRITTEN SUBMISSION DURING THE COURSE OF APPELLATE PROCEEDIN GS. AS THE APPELLANT HAD NOT DISCLOSED THE SHORT TERM CAPITAL GAIN OF RS. 5,95,000/- AND HAD CLAIMED THE INCOME FROM OTHER SO URCES OF RS. 28,060/- AS EXEMPT INCOME, THEREFORE, I AM OF THE C ONSIDERED VIEW THAT IT IS A FIT CASE FOR LEVY OF PENALTY U/S 271(1 )(C). ACCORDINGLY, THE PENALTY OF RS. 1,63,241/- LEVIED BY THE AO IN RESPE CT OF THE ADDITION OF RS. 6,23,060/- IS HEREBY CONFIRMED. 2.2 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE QUANTUM ADDITION IN FAVOUR OF THE ASSESSEE HAS BEEN DECIDED BY ITAT, JAIPUR, SMC BENCH VIDE ITS ORDER DATED 09-03-2016 IN ITA NO. 495/JP/2014 FOR THE ASSESSMENT YEAR 2008-09. 2.2 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 2.3 THE BENCH HAS HEARD THE RIVAL CONTENTIONS AND P ERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT THE ISSUE O F QUANTUM WAS DECIDED IN FAVOUR OF ITA NO.760/JP/2017 SHRI BHANWAR LAL GEH LOT VS ITO, WARD- 1, KISHANGARH 3 THE ASSESSEE BY ITAT JAIPUR , SMC BENCH VIDE ITS ORDER DATED 09-03-2016 IN ITA NO. 495/JP/2014 FOR THE ASSESSMENT YEAR 2008-09 BY OBSERVING AS UNDER:-. 11. IN MY CONSIDERED OPINION ONCE THE ADMITTED FACT UAL POSITION IN RESPECT OF THE IMPUGNED TRANSACTION WAS THAT THE PROPERTY IN Q UESTION WAS HELD FOR A BRIEF PERIOD OF ABOUT SIX MONTHS AND THE ASSESSEE HAS FURNISHED DET AILS OF VARIOUS OTHER LAND PURCHASED IN THE PAST AS WELL AS IN THE SUBSEQUENT YEAR, THEREFO RE, PRIMA FACIE, IT IS DIFFICULT TO HOLD THAT THE ASSESSEE WAS NOT DEALING IN LAND TRANSACTION. A S DEFINED U/S 2(13) OF THE ACT BUSINESS INCLUDES ANY TRADE, COMMERCE OR ANY ADVENTURE IN NA TURE OF TRADE. AT THIS POINT IT IS ALSO WORTH TO MENTION THAT THE DEFINITION AS PRESCRIBED U/S 2(13) OF THE ACT IS A INCLUSIVE DEFINITION, THEREFORE, ALL SUCH ACTIVITIES WHICH PR IMA FACIE APPEARS TO BE IN THE NATURE OF TRADE CAN BE HELD AS BUSINESS ACTIVITY. IT IS ALSO WORTH TO MENTION THAT ON ONE HAND THE AO HAS REJECTED THE CLAIM OF BUSINESS ACTIVITY OF THE ASSESSEE AND SIDE BY SIDE ALSO REJECTED THE SALE CONSIDERATION DECLARED BY THE ASSESSEE BY INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT. SUCH TYPE OF ISSUES ALWAYS REMAINS CONT ROVERSIAL AND, THEREFORE, IT IS NECESSARY TO DECIDE EACH CASE ON ITS OWN FACTS. SUC H TYPE OF CONTROVERSY CAN ALSO BE DECIDED AFTER CONSIDERING THE INTENTION OF THE ASSE SSEE AND THE CIRCUMSTANCES OF THE CASE SO AS TO EXAMINE WHETHER IT WAS IN THE NATURE OF TR ADE OR NOT. I AM OF THE CONSIDERED OPINION THAT UNDER THE TOTALITY OF THE FACTS AS DIS CUSSED ABOVE, THE ASSESSEE CAN BE HELD AS A DEALER IN PURCHASE AND SALE OF LAND. RELIANCE IS PLACED ON THE DECISION CITED BY THE ASSESSEE. AS A RESULT, THE VIEW TAKEN BY THE REVENU E AUTHORITIES IS HEREBY REVERSED AND THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. TAKING INTO CONSIDERATION THE ABOVE FACTS, CIRCUMST ANCES OF THE CASE AND ALSO THE ORDER OF ITAT, JAIPUR , SMC BENCH IN ITA NO. 495/JP /2014 (ASSESSEE )FOR THE ASSESSMENT YEAR 2008-09 AS TO DELETION OF ADDITION OF RS. 6,23,060/- IN THE QUANTUM APPEAL OF THE ASSESSEE, I DIRECT TO DELETE THE PENALTY OF RS. 1,63,241/- ITA NO.760/JP/2017 SHRI BHANWAR LAL GEH LOT VS ITO, WARD- 1, KISHANGARH 4 CONFIRMED BY THE LD. CIT(A) U/S 271(1) OF THE ACT . THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 /11/2 017 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/11/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI BHANWAR LAL GEHLOT, KISHANGARH 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 1, KISHANGARH 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. 760/JP/2017 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR