SH. VIKAS SONGRA, AJMER V. DEPUTY COMMISSIONER OF INCOME TAX , AJMER

ITA 84/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3636 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 24-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI
• Keywords: Capital asset; Bonafide mistake
• Section: 271(1)(c); 54F; 80IB; 54

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 84/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 SH. VIKAS SONGARA NEAR AJMER HOSPITAL POLICE LINE, AJMER CUKE VS. DCIT, CIRCLE-1, AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AMIPS0584K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P. C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. POONAM RAI (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 05/06/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT :11/06/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A), AJMER DATED 28.11.2017 FOR ASSESSMENT Y EAR 2013-14 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS O F APPEAL:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DECIDING THE APPEAL EX-PARTE WITHOUT PROVIDING ADEQUATE OPPORTUN ITY OF HEARING TO THE ASSESSEE. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE LEVY OF PENALTY OF RS. 1,54,188/- U/S 271(1)(C) OF THE IT ACT, 1961. ITA NO. 84/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 2 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IN HIS RETURN OF INCOME HAS CLAIMED DEDUCTION U/S 54 AT RS .11,00,000/- WHICH WAS NOT ALLOWED BY THE AO AS THE ASSESSEE HAS SOLD NON-RESIDENTIAL PROPERTY. THE ASSESSEE SUBMITTED THAT BY MISTAKE, D EDUCTION WAS CLAIMED UNDER SECTION 54 INSTEAD OF SECTION 54F AND IT WAS FURTHER SUBMITTED THAT THE INVESTMENT IN HOUSE PROPERTY MAY BE TAKEN AT RS 11,70,890 INSTEAD OF RS 11,00,000. THE AO THEREAFT ER ALLOWED DEDUCTION U/S 54F TAKING THE INVESTMENT IN HOUSE PR OPERTY AT RS 11,70,890 AND DEDUCTION WAS DETERMINED AT RS.4,28,8 70/-. FURTHER, THE AO OBSERVED THAT ASSESSEE HAS RECEIVED INCOME TAX R EFUND OF RS.1,00,310/- INCLUDING INTEREST OF RS.4,316/- ON S AID REFUND WHICH WAS NOT SHOWN IN THE RETURN OF INCOME. ACCORDINGLY, INT EREST ON REFUND OF RS.4,316/- WAS ADDED TO THE TOTAL INCOME. ON THE AB OVE ADDITION & DISALLOWANCE, THE AO HAS IMPOSED PENALTY OF RS.1,54 ,188/-U/S 271(1)(C) FOR FURNISHING INACCURATE PARTICULARS OF INCOME WHI CH HAS BEEN CONFIRMED BY THE LD CIT(A). NOW, THE ASSESSEE IS I N APPEAL BEFORE US. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT IN RESPECT OF BOTH THE ADDITION AND DISALLOWANCE, ASSESSEE HAS NOT FILED ANY INACCURATE PARTICULARS. ONLY BY MISTAKE/ OVERSIGHT, THE INTEREST ON INCOME TAX REFUND WAS NOT INCLUDED IN THE INCOME AN D THE CLAIM OF DEDUCTION IN RESPECT OF INVESTMENT IN THE HOUSE PRO PERTY WAS MADE U/S 54 INSTEAD OF SECTION 54F. EVEN THE AO HAS NOT ALLE GED THAT THERE WAS ANY MALAFIDE INTENTION ON PART OF ASSESSEE IN NOT I NCLUDING THE INTEREST INCOME OR TO MAKE INCORRECT CLAIM OF DEDUCTION. IN FACT, THE ASSESSEE BY MISTAKE HAS INCLUDED AN AMOUNT OF RS.5,35,000/- IN COMPUTING THE CAPITAL GAIN WHEREAS THE SAME RELATES TO AGRICULTUR AL LAND WHICH IS NOT A CAPITAL ASSET. THUS, THE BONAFIDE MISTAKE IN NOT IN CLUDING THE MINOR INCOME OF RS.4,316/- AND MAKING CLAIM OF DEDUCTION U/S 54 INSTEAD OF ITA NO. 84/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 3 U/S 54F CANNOT BE ATTRIBUTED AS FURNISHING OF INACC URATE PARTICULARS OF INCOME. RELIANCE IN THIS CONNECTION IS PLACED ON TH E FOLLOWING CASES:- CIT VS. RELIANCE PETROPRODUCTS PVT. LTD. 322 ITR 15 8 (SC): A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961, SUGGESTS THAT IN ORDER TO BE COVERED BY IT, T HERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICU LARS OF HIS INCOME. THE MEANING OF THE WORD 'PARTICULARS' USED IN SECTI ON 271(1)(C) WOULD EMBRACE THE DETAILS OF THE CLAIM MADE. WHERE NO INF ORMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. I N ORDER TO EXPOSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTLY CO VERED BY THE PROVISION, THE PENALTY PROVISION CANNOT BE INVOKED. BY NO STRE TCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUNT TO FURNISH ING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHIN G WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS T HE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF H IS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, THE LI ABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY TH E ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE, TH ERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A MER E MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NO T AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHIN G INACCURATE PARTICULARS. ITA NO. 84/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 4 POOJA INDUSTRIES VS. ITO ITA NO.322/CHD/2015 ORDER DT.05.06.2015 (CHD.) (TRIB.): PENALTY U/S 271(1)(C) COULD NOT BE LEVIED ONLY BECA USE THE ASSESSEE HAD WRONGLY CLAIMED DEDUCTION U/S 80IC @ 100% INSTE AD OF DEDUCTION U/S 80IB @ 25%. PENALTY COULD ONLY BE LEVIED ONLY A ND ONLY IF THERE WERE INACCURATE PARTICULARS OF THE INCOME AND THERE WERE CONCEALMENT OF PARTICULARS OF INCOME OF THE ASSESSEE. MAKING AN INCORRECT CLAIM WOULD NOT TANTAMOUNT TO FURNISHING INACCURATE PARTI CULARS. MERIDIAN IMPEXVS. ACIT (2014) 107 DTR 89/149 ITD 29 (RAJKOT) (TRIB.) (TM) THE ASSESSEE HAVING MADE CLAIM FOR DEDUCTION U/S 80 IB ON THE BASIS OF ITS LEGAL PERCEPTION, FURNISHING ALL THE MATERIAL F ACTS RELEVANT TO THE COMPUTATION OF TOTAL INCOME AND LATER WITHDRAWN THE CLAIM DURING THE ASSESSMENT PROCEEDINGS AFTER DISCOVERING THAT IT WA S NOT ADMISSIBLE, IT WAS A BONA FIDE CLAIM AND DID NOT AMOUNT TO FILING OF INACCURATE PARTICULARS OF INCOME. THEREFORE, ASSESSEE IS NOT L IABLE FOR PENALTY U/S 271(1)(C). 4. THE LD DR IS HEARD WHO HAS RELIED ON THE ORDER O F THE LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO FINDING OF THE LO WER AUTHORITIES THAT THE DETAILS FURNISHED IN THE RETURN OF INCOME IN TERMS OF INVESTMENT IN THE HOUSE PROPERTY IS INCORRECT. INFACT, WE FIND THAT THE AO HAS CONSIDERED THE INVESTMENT IN HOUSE PROPERTY AT RS 11,70,890 AS AGAINST RS ITA NO. 84/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 5 11,00,000 SHOWN IN THE RETURN OF INCOME. ONLY DISP UTE IS REGARDING ELIGIBILITY OF CLAIM UNDER SECTION 54 OR SECTION 54 F OF THE ACT. IT IS NOT IN DISPUTE THAT WHAT HAS BEEN SOLD IS A NON-RESIDENTIA L PROPERTY AND THE ASSESSEE IS ELIGIBLE FOR DEDUCTION IN RESPECT OF FR ESH INVESTMENT IN HOUSE PROPERTY. WHILE THE ASSESSEE HAS BY MISTAKE CLAIME D DEDUCTION UNDER SECTION 54, THE AO ON EXAMINATION FOUND THAT THE RI GHT PROVISIONS FOR ALLOWING DEDUCTION IS SECTION 54F AND HE THEREFORE ALLOWED THE DEDUCTION UNDER SECTION 54F OF THE ACT. IT IS THER EFORE NOT A CASE WHERE THE CLAIM OF THE ASSESSEE IS PATENTLY ILLEGAL OR NOT ALLOWABLE AS PER THE PROVISIONS OF THE ACT. FOLLOWING THE DECIS ION OF THE HONBLE SUPREME COURT IN CASE OF RELIANCE PETROPRODUCTS (SU PRA), WHERE ALL THE REQUISITE PARTICULARS ARE FOUNDS TO BE INACCURATE, MERELY ALLOWING THE CLAIM UNDER SECTION 54F INSTEAD OF SECTION 54 WOULD MAKE THE ASSESSEE LIABLE FOR PENALTY UNDER SECTION 271(1)(C) OF THE A CT. IN THE RESULT, THE PENALTY SO LEVIED IS DELETED AND THE GROUND OF APPE AL IS ALLOWED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/06/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 11/06/2018 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. VIKAS SONGARA, AJMER ITA NO. 84/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 6 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CIRCLE-1, AJMER 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 84/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR