Smt. Sudesh Suri, Meerut V. ITO, Meerut

ITA 87/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3941 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 06-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ROHIT AGRAWAL
• Keywords: Deduction for capital gain
• Section: 54F; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : BENCH D NEW DELHI BEFORE SRI G.D.AGRAWAL, HON BLE PRESIDENT AND SMT. BEENA A PILLAI, JM ITA NO. 87 /DEL/201 6 A.Y. 20 06 - 07 SMT. SUDESH SURI VS. ITO, WARD 2(3) C/O KANPUR BAREILLY FREIGHT CARRIER MEERUT TRANSPORT NAGAR MEERUT PAN: ABSPS6744E (APPELLANT) (RESPONDENT) APPELLANT BY: SRI ROHIT AGRAWAL, FCA RESPONDENT BY: SRI AMIT JAIN, SR.D.R. DATE OF HEARING : 15.01.18 DATE OF PRONOUNCEMENT : 17.01.18 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER T HE PRESENT PENALTY APPEAL HAS BEEN FILED BY ASSESSEE AGAINST ORDER DATED 09/11/15 PASSED BY LD.CIT(A), MEERUT FOR ASSESSMENT YEAR 2006 - 07 ON THE FOLLOWING GROUNDS OF APPEAL: 1. THE ID.CIT(A) HAS ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE BY CONFIRMING THE IMPOSITION OF CONCEALMENT PENALTY U / S 271(1)(C) OF THE INCOME TAX ACT, 1961, TO THE EXTENT OF RS.1,87,260 / - , INSPITE OF MAKING OBSERVATION VIDE PARA 2 AT PAGE 12 OF THE ORDER UNDER APPEAL, THAT THE CASE OF THE APPELLANT IS NOT FIT FOR IMPOSITION OF CONCEALMENT PENALTY SOLELY RELYING UPON THE JUDICIAL PRONOUNCEMENT OF THE HON'BLE SUPREME C OURT IN THE CASE OF UNION OF INDIA VS. DHARMENDRA TEXTILE PROCESSORS (2007) 295 ITR 0244 (SC) AND IGNORING THE LATER JUDICIAL PRONOUNCEMENT OF THE HON'BLE SUPREME ITA NO. 87/DEL/2016 AY:2006 - 07 SMT.SUDESH SURI VS. ITO, MEERUT 2 COURT IN THE CASE OF CIT VS. RELIANCE PETRO P RODUCTS (P) LTD. (2010) 322 ITR 0158 AS RELIED U PON BY THE APPELLANT. 2. WITHOUT PREJUDICE TO ABOVE, ON THE FACTS & UNDER THE CIRCUMSTANCES OF THE CASE, THE CONFIRMATION OF CONCEALMENT PENALTY OF RS.1,87,260 / - U /S 271 (1)(C) OF THE INCOME TAX ACT, 1961 IS TOTALLY UNJUST, UNLAWFUL & UNWARRANTED AND THER EFORE THE SAME DESERVES TO BE CANCELLED. 3. THE APPELLANT CRAVES LEAVE TO ADD, MODIFY AND/ OR DELETE ANY GROUNDS OF APPEAL . 2. BRIEF FACTS OF THE CASE ARE AS UNDER . A SSESSEE FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 75, 603/ - ON 30/11/06. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE A CT AND THE CASE WAS SELECTED FOR SCRUTINY. ACCORDINGLY NOTICE UNDER SECTION 143(2) AND 142(1) OF THE INCOME TAX ACT , 1961 (THE A CT ) WAS ISSUED TO ASSESSEE. IN RESPONSE TO STATUTORY NOTICES, R EPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE LD.AO AND FILED NECESSARY DETAILS AS CALLED FOR. 2.1. DURING THE ASSESSMENT PROCEEDINGS LD.AO OBSERVED THAT ASSESSEE HAS WORKED OUT LONG TERM CAPITAL GAIN ON TRANSFER OF IMMOVABLE PROPERTY. HE OBSERVED THAT WHILE COMPUTING CAPITAL GAINS , ASSESSEE CLAIMED DEDUCTION UNDER SECTION 54F TO THE TUNE OF RS.1 0,00,000 / - AS SHE HAD INVESTED CERTAIN AMOUNT IN ICICI PRUDENTIAL LIFE INSURAN CE. LD. AO DENIED BENEFIT IN RESPECT OF THE AMOUNT INVESTED IN ICICI PRUDENTIAL LIFE INSURANCE , AS IT DID NOT QUALIFY FOR DEDUCTION UNDER SECTION 54F. AGAINST THE ORDER OF LD. AO ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) W HO CONFIRMED THE DISALLOWANCE MADE BY LD.AO. ITA NO. 87/DEL/2016 AY:2006 - 07 SMT.SUDESH SURI VS. ITO, MEERUT 3 2.2. SUBSEQUENTLY ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS AND LEVIED PENALTY OF RS.5,05,620/ - . 2.3. AGGRIEVED BY THE ORDER OF LD. AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) WHO RESTRICTED THE PENALTY TO RS. 1,87,260/ - . 3 . AGGRIEVED BY THE ORDER OF LD.CIT(A) ASSESSEE IS IN APPEAL BEFORE US NOW. 3.1. LD.AR SUBMITTED THAT ASSESSEE HAD NEITHER CONCEALED ANY INCOME NO R FURNISHED INACCURATE PARTICULARS. HE SUBMITTED THAT MISTAKE OF MAKING INVESTMENT UNDER SEC TION 54F ON THE AMOUNT INVESTED IN ICICI PRUDENTIAL L IFE I NSURANCE WAS ONLY ON THE BASIS OF BONA FIDE BELIEF REGARDING ALLOWABILITY THEREOF , AS ADVISED BY HER ADVISER ENGAGED IN THE PREPARATION AND FILING OF RETURN OF INCOME. HE SUBMITTED THAT ASSESSEE IS AN OLD LADY WHO HAS NO IDEA , WHATSOEVER MANNER IN RESPECT OF INVESTMENT THAT COULD BE MADE FOR THE PURPOSES OF CLAIMING CAPITAL GAIN EXEMPTION AS PER I NCOME T AX A CT , 1961 . HE SUBMITTED THAT ASSESSEE HAS ACTED ON THE ADVICE OF A PROFESSIONAL WHO ASSISTED HER IN FILING THE RETURN FOR THE YEAR UNDER CONSIDERATION. 3.2. LD.A.R. PLACED RELIANCE UPON THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF PWC V S. CIT , REPORTED IN 348 ITR 306, WHEREIN ON IDENTICAL FACTS PENALTY HAS BEEN HELD TO BE NOT IMPO SABLE ON WRONG ADVICE GIVEN BY A PROFESSIONAL. HE SUBMITTED THAT THE FACTS OF THE PRESENT CASE ARE ON A BETTER FOOTING VIS - - VIS CASE OF PWC V S. CIT (SUPRA) . 4. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH THE SIDES AND THE LIGHT OF THE RECORDS PLACED BEFORE US. ITA NO. 87/DEL/2016 AY:2006 - 07 SMT.SUDESH SURI VS. ITO, MEERUT 4 4.1. ON GOING THROUGH THE SUBMISSIONS ADVANCED BY LD.A.R. BEFORE THE AUTHORITIES BELOW AS WELL AS BEFORE US , WE ARE OF THE OPINION THAT ASSESSEE HAD ACTED BO NAFID E LY ON THE ADVICE GIVEN BY HER ADVISER WHO P REPAR ED THE RETURN FOR YEAR UNDER CONSIDERATION. IN OUR CONSIDERED OPINION ASSESSEE DID NOT HAVE CALIBER AND EXPERTISE TO UNDERSTAND THE ALLOWABILITY OF A PARTICULAR CLAIM UNDER THE ACT. 4.2. RESPECTFULLY FOLLOWING THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF CIT V S. PWC (SUPRA) WE ARE INCLINED TO DELETE THE PENALTY LEVIED IN THE PRESENT CASE. 4.3. ACCORDINGLY THE GROUND RAISED BY THE ASSESSEE STANDS ALLOWED. 5. IN THE RESULT APPEAL FILED BY THE ASS ESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JANUARY, 2018. SD/ - SD/ - (G.D.AGRAWAL ) (BEENA A PILLAI) PRESIDENT JUDICIAL MEMBER DT. 17 TH JANUARY, 2018 *MV ITA NO. 87/DEL/2016 AY:2006 - 07 SMT.SUDESH SURI VS. ITO, MEERUT 5 COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NO. 87/DEL/2016 AY:2006 - 07 SMT.SUDESH SURI VS. ITO, MEERUT 6 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON DRAGON 15.01.2018 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 16.01.2018 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER