The ACIT, Circle-5, Baroda V. Hindustan Earth Movers Pvt.Ltd., Baroda

ITA 806/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5613 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 22-07-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 04-03-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Assessee Lawyers: P M MEHTA
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND T.K. SHARMA, JUDICIAL MEMBER) ITA.NO.534, 535, 536/AHD/2008 [ASSTT. YEARS: 2001-2002, 2002-2003, 2004-2005] AND ITA NO.806/AHD/2008 [ASSTT.YEAR : 2001-2002 ACIT, CIR.5 BARODA. VS. M/S.HINDSTHAN EARTH MOVERS PVT. LTD. ASHWAMEGH-II, SAMRAJYA COMPLEX AKOTA, BARODA. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI K.M. MAHESH ASSESSEE BY : SHRI P.M.MEHTA O R D E R PER G.D. AGRAWAL, VICE-PRESIDENT: THESE ARE FOUR APPEALS BY THE REVENUE AGAINST RESPECTIVE ORDERS OF THE COMMISSION ER OF INCOME-TAX (APPEALS)-V, BARODA DATED 28.11.2007. SINCE ASSES SEE BEING SAME AND COMMON ISSUES ARE RAISED, ALL THESE APPEALS ARE DIS POSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ALL THESE APPEALS, COMMON GROUND RAISED IS AG AINST THE CANCELLATION OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX A CT, 1961. 3. AT THE TIME OF HEARING BEFORE US, IT WAS POINTED BY THE LEARNED COUNSEL THAT THE PENALTY WAS LEVIED BY THE AO ON ACCOUNT OF ADDITION MADE BY HIM TO THE LONG TERM CAPITAL GAIN DISCLOSED BY THE ASSESSE E. THAT THE ASSESSEE HAS WORKED OUT THE LONG TERM CAPITAL GAIN BY TAKING FAI R MARKET VALUE OF THE LAND AS ON 1-4-1981 AT THE RATE OF RS.23/- PER SQ.FT. AS PE R REGISTERED VALUERS REPORT. THAT THE AO DID NOT ACCEPT THE VALUE OF THE LAND AS ON 1-4-81 AS DISCLOSED BY THE ASSESSEE AND ADOPTED THE COST AT THE RATE OF RS .10/- PER SQ.FT. ON THE BASIS OF ITA.NO.534, 535, 536/AHD/2008 -2- DVOS REPORT. ACCORDINGLY, THE ADDITIONS WERE MADE TO THE INCOME FROM LONG TERM CAPITAL GAIN DISCLOSED BY THE ASSESSEE. THAT ON APPEAL, THE ITAT VIDE ORDER DATED 6-11-2009 FOR A.Y.2001-02, 2002-03 IN I TA NO.1744/AHD/2005 AND IN 2694/AHD/2005 DELETED THE ADDITION. THE ABO VE ORDER WAS FOLLOWED FOR A.Y.2000-2001 AND 2004-05 VIDE ITA NO.1333 AND 134/ AHD/2009. THUS IN ALL THE FOUR YEARS, THE ADDITION TO THE LONG TERM CAPIT AL GAIN STOOD DELETED AFTER THE ORDER OF THE ITAT. THUS, WHEN THE ADDITION ITSELF IS DELETED, THE PENALTY UNDER SECTION 271(1)(C) DOES NOT SURVIVE. COPY OF THE OR DER OF THE ITAT IN THE QUANTUM APPEAL IS PRODUCED BEFORE US. 4. AFTER CAREFULLY CONSIDERING THE ARGUMENTS OF BOT H THE SIDES AND THE FACTS OF THE CASE, WE FIND THAT THE ADDITION IN RESPECT O F WHICH PENALTY UNDER SECTION 271(1)(C) WAS LEVIED HAS ALREADY BEEN DELETED. ONC E THE ADDITION HAS BEEN DELETED, THE PENALTY BASED UPON SUCH ADDITION CANNO T BE SURVIVED. WE THEREFORE FIND NO MERIT IN THE APPEALS OF THE REVEN UE, THE SAME ARE DISMISSED. 5. IN THE RESULT, THE REVENUES APPEALS ARE DISMISS ED. ORDER PRONOUNCED IN OPEN COURT ON 22 ND JULY, 2010. SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 22-07-2010 VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD