Appeal details
Counselvise Citation
865319914 RSA 2011
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
07-01-2015
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
C
Next Hearing Date
29-12-2014
Assessment Year
2004-2005
Appeal Filed On
22-12-2011
Judgement Text
, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE HONBLE S/SHRI H.L. KARWA, PRESIDENT AND B. R.BASKARAN (AM) . . , . . , ./ I.T.A. NO.8653/MUM/2011 ( / ASSESSMENT YEAR :2004-05) MS.PREMA GOPAL RAO, G-1, EVEREST APT, 156 TARDEO TARDEO, ROAD, TARDEO, MUMBAI0-400034 / VS. DY. COMMISSIONER OF INCOME TAX 16(1), MATRU MANDIR,TARDEO ROAD, MUMBAI-400007 ( / APPELLANT) .. ( ! / RESPONDENT) ./ #$ ./ PAN/GIRNO.:AABPR7003D % / ASSESSEE BY : SHRI NISHIT GANDHI ! & % /RESPONDENT BY : SHRI NEIL PHLIP. ' ( & ) * / DATE OF HEARING : 29.12.2014 +, & ) * /DATE OF PRONOUNCEMENT : 07 .01.2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS PREFERRED THIS APPEAL CHALLENGING THE ORDER DATED 15.11.2011 PASSED BY LD CIT(A)-25, MUMBAI AND IT RE LATES TO THE ASSESSMENT YEAR 2004-05. THE ASSESSEE IS AGGRIEVED BY THE DECI SION OF LD CIT(A) IN CONFIRMING THE PENALTY OF RS.2,46,300/- LEVIED BY T HE AO U/S 271(1)(C) OF THE ACT. 2. THE FACTS THAT LED TO THE LEVY OF PENALTY AR E STATED IN BRIEF. THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 10.09.2004 DECLA RING TOTAL INCOME OF RS.12,16,600/-, WHICH INCLUDED LONG TERM CAPITAL GA IN ON SALE OF SHARES OF RS.3,60,305/-. THE CASE WAS SELECTED FOR SCRUTINY AND HENCE THE AO ISSUED NOTICE U/S 143(2) OF THE ACT ON 28.3.2005. AFTER T HE RECEIPT OF THE SAID NOTICE, THE ASSESSEE FILED REVISED RETURN OF INCOME, WHEREIN TH E ASSESSEE REVISED THE LONG TERM CAPITAL GAINS UPWARDS TO RS.14,87,789/-. THE AO COMPLETED THE ASSESSMENT AS PER THE REVISED RETURN OF INCOME BY M AKING CERTAIN ITA NO.8653/M/11 2 DISALLOWANCES. THE AO TOOK THE VIEW THAT THE ASSES SEE HAS REVISED THE RETURN OF INCOME ONLY AFTER THE ENQUIRY WAS INITIATED BY HIM. ACCORDINGLY THE AO HELD THAT THE PENALTY IS LEVIABLE ON A SUM OF RS.15,84,783/-, WHICH INCLUDED FOLLOWING AMOUNTS:- LONG TERM CAPITAL GAIN ENHANCED AMOUNT - 11,27,48 4 INTEREST INCOME & PROFIT FROM ZUARI MUTUAL FUND ADDED IN THE ASSESSMENT ORDER - 1,40,373 ACCORDINGLY, THE AO LEVIED A PENALTY OF RS.2,46,300 /-. THE LD CIT(A) ALSO CONFIRMED THE PENALTY MAINLY ON THE REASONING THAT (A) THE FILING OF REVISED RETURN OF INCOME WAS NOT VOLUNTARY, SINCE IT WAS FILED AFTER SELECTION OF THE ORIGINAL RETURN OF INCOME FOR SCRUTINY. (B) THE ASSESSEE HAD MADE WRONG AND DUBIOUS CLAIMS . 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICE THAT THE ASSESSING OFFICER HAS DETERMINED THE CONCEALED INCO ME AT RS.15,84,783/-. HOWEVER, THE ADDITIONS MADE IN THE ASSESSMENT ORDER WAS ONLY RS.1,40,373/- AND FURTHER THE DIFFERENCE IN LONG TERM CAPITAL GAI NS BETWEEN THE REVISED RETURN AND THE ORIGINAL RETURN WAS ONLY RS.11,27,484/-. THUS THERE IS A DIFFERENCE IN THE AMOUNT OF CONCEALED INCOME DETERMINED BY THE AO, FOR WHICH THE ASSESSING OFFICER HAS FAILED TO GIVE THE DETAILS IN THE PENAL TY ORDER. BE THAT AS IT MAY, WE NOTICE THAT THE TAX AUTHORITIES HAVE TAKEN THE VIEW THAT THE AMOUNT OF LONG TERM CAPITAL GAIN ENHANCED BY THE ASSESSEE IN THE REVISE D RETURN OF INCOME SHOULD BE CONSIDERED AS CONCEALED INCOME, SINCE THE ASSESSE E HAD REVISED THE SAME AFTER RECEIPT OF THE NOTICE U/S 143(2) OF THE ACT, I.E., ACCORDING TO THE TAX AUTHORITIES THE NOTICE HAS PROMPTED THE ASSESSEE TO FILE THE REVISED RETURN OF INCOME HENCE IT WAS NOT VOLUNTARY. AT THE TIME OF HEARING, THE LD A.R BROUGHT TO OUR NOTICE THAT THE AO DID NOT ASK FOR ANY DETAILS AT THE TIME OF ISSUING NOTICE U/S 143(2) AND HENCE THE QUESTION OF DETECTION OF THE D ISCREPANCY IN THE LONG TERM CAPITAL GAIN BY THE AO DOES NOT ARISE IN THE INSTAN T CASE. ACCORDINGLY HE SUBMITTED THAT THE REVISED RETURN OF INCOME WAS VOL UNTARY IN NATURE AND THE SAME HAS ALSO BEEN FILED WITHIN THE DUE DATE PRESCR IBED IN THE ACT FOR FILING REVISED RETURN OF INCOME. HE FURTHER SUBMITTED THA T THE AO HAS ALSO RECOGNISED THE SAID RETURN IN THE ASSESSMENT PROCEEDINGS. HE ALSO PLACED RELIANCE ON THE DECISION RENDERED BY THE DELHI BENCH OF TRIBUNAL IN THE CASE OF ACIT VS. ASHOK ITA NO.8653/M/11 3 RAJ NATH (2013)(33 TAXMANN.COM 588), WHEREIN THE TR IBUNAL HAD DELETED THE PENALTY LEVIED UNDER IDENTICAL SET OF FACTS. 4. WE HAVE GONE THROUGH THE ORDER PASSED BY DELHI BENCH OF TRIBUNAL REFERRED SUPRA. WE NOTICE THAT THE ASSESSEE THEREI N HAD FILED REVISED RETURN OF INCOME BEYOND THE TIME PRESCRIBED U/S 139(5) BY ENH ANCING THE LONG TERM CAPITAL GAIN, AFTER THE RECEIPT OF NOTICE U/S 143(2 ) OF THE ACT. EVEN THOUGH THE REVISED RETURN WAS INVALID, THE AO COMPLETED THE AS SESSMENT BY ACCEPTING THE INCOME DECLARED IN THE REVISED RETURN. UNDER THESE SET OF FACTS, THE TRIBUNAL HAD HELD THAT THE ADDITIONAL AMOUNT OF CAPITAL GAIN DIS CLOSED IN THE REVISED RETURN DID NOT TANTAMOUNT TO DETECTION OF CONCEALMENT OF INCOM E U/S 271(1)(C) OF THE ACT. 5. IN THE INSTANT CASE, THE REVISED RETURN OF INCO ME WAS FILED WITHIN THE TIME PRESCRIBED U/S 139(5) OF THE ACT. EVEN THOUGH THE ASSESSED FILED THE REVISED RETURN OF INCOME AFTER THE RECEIPT OF NOTICE U/S 14 3(2) OF THE ACT, YET THE ADMITTED FACT REMAINS THAT THE ASSESSING OFFICER DID NOT SEE K ANY TYPE OF PARTICULARS IN THAT NOTICE. HENCE THE MISTAKE IN THE LONG TERM CAPITAL GAIN COULD NOT HAVE COME TO THE NOTICE OF THE AO AT THAT POINT OF TIME, MEANING THEREBY, IT SHOULD BE CONSTRUED THAT THE ASSESSEE HAS DECLARED THE HIGHER AMOUNT OF LONG TERM CAPITAL GAIN VOLUNTARILY UPON ITS DETECTION. HENCE, WE ARE UNAB LE TO AGREE WITH THE VIEW OF THE TAX AUTHORITIES THAT THE REVISED RETURN OF INCOME W AS NOT VOLUNTARY ONE, BUT THE ASSESSEE WAS CONSTRINED TO ENHANCE THE LONG TERM CA PITAL GAIN ONLY UPON THE RECEIPT OF NOTICE U/S 143(2) OF THE ACT. ACCORDING LY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFIC ER TO DELETE THE PENALTY LEVIED ON THE ENHANCED CAPITAL GAIN AMOUNT. 6. WITH REGARD TO THE ADDITION OF RS.1,40,373/- M ADE IN THE ASSESSMENT ORDER, WE NOTICE THAT THE ASSESSEE HAS OMITTED TO D ECLARE THE SAME IN THE REVISED RETURN OF INCOME ALSO AND NO CONVINCING EXPLANATION WAS GIVEN FOR THE SAME. HENCE WE CONFIRM THE PENALTY LEVIED ON THE ABOVE SA ID AMOUNT. 7. WITH REGARD TO THE BALANCE AMOUNT, WE HAVE ALR EADY NOTICED THAT THE AO HAS FAILED TO GIVE THE DETAILS OF THE SAME. HENCE WE RESTORE THE SAME TO HIS FILE WITH THE DIRECTION TO RECONSIDER THE SAME AFTER GIV ING NECESSARY DETAILS TO THE ASSESSEE. ITA NO.8653/M/11 4 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS PARTLY ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OP EN COURT ON 7TH JAN,2015 . +, ' - ./ 0 1 7TH JAN 2015 , & 2( 3 SD SD ( . . / H.L. KARWA) ( . . , / B.R. BASKARAN ) / PRESIDENT / ACCOUNTANT MEMBER . ' ( MUMBAI: 7 TH JAN, 2015. . . ./ SRL , SR. PS ! ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT. 3. ' 5) ( ) / THE CIT(A)- CONCERNED 4. ' 5) / CIT CONCERNED 5. 6. 67 2 )8 , * 8 , . ' ( / DR, ITAT, MUMBAI CONCERNED 2 9 : ( / GUARD FILE. ; ' / BY ORDER, TRUE COPY < # (ASSTT. REGISTRAR) * 8 , . ' ( /ITAT, MUMBAI
