JHABAR SINGH, Jaipur V. ITO, Jaipur

ITA 912/JPR/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2179 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 31-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA CIT DHK
• Assessee Lawyers: MANISH AGRWAL; NARENDRA GOSWAMI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Deemed to accrue or arise in india; Question of law; Cost of acquisition
• Section: 143(3); 50C

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 HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 912/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11. SHRI JHABAR SINGH, B-31, SANJAY COLONY, NEHRU MARG, JAIPUR. CUKE VS. THE ITO, WARD 4(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AFEPS6508Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGRWAL (C.A) & SHRI NARENDRA GOSWAMI (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10.04.2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 17/04/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-II, JAIPUR, DATED 07.10.2014 PERTAINING TO A.Y. 2010-11 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1) THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A)-II, JAIPUR HAS GROSSLY ERRED IN CONFIRMING T HE PENALTY IMPOSED U/S 271(1){C} OF THE IT ACT, 1961 BY THE LD. ITO WA RD 4(1), JAIPUR AT RS. 1869410/- WITHOUT ESTABLISHING CASE OF CONCEALM ENT & FURNISHING OF INACCURATE PARTICULARS OF INCOME. THUS THE PENALTY SO IMPOSED DESERVES TO BE QUASHED. 2) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AS WELL AS IN LAW, THE LD. CIT(A)-II, JAIPUR HAS COMMITTED A GROS S ERROR OF LAW AND FACTS IN COMING TO THE CONCLUSION THAT THERE IS HUG E DIFFERENCE BETWEEN THE STATED SALE CONSIDERATION AND THE DLC RATE, THE LEVY OF PENALTY U/S 271(1){C} OF THE IT ACT, 1961 IS JUSTIFIED, WHEREAS VALUATION AS PER SECTION 50-C OF THE IT ACT, 1961 IS DEEMED PROVISIO N FOR COMPUTATION OF LONG TERM CAPITAL GAIN & AS SUCH IT CANNOT BE TH E BASIS FOR LEVY OF 2 ITA NO. 912/JP/2014 SHRI JHABAR SINGH, JAIPUR. PENALTY U/S 271(1){C} OF THE IT ACT. THUS PENALTY SO IMPOSED BY THE LD. ITO WARD 4(1), JAIPUR AT RS. 1869410/- & CONFIR MED BY THE LD. CIT(A)-II, JAIPUR DESERVED TO BE DELETED. 3) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A)-II, JAIPUR HAS GROSSLY ERRED IN NOT APPRECIATING THAT T HE VALUATION AS PER SECTION 50-C OF THE IT ACT, 1961 MAY BE DEEMED TO B E THE SALE CONSIDERATION FOR PURPOSE OF COMPUTATION OF LONG TE RM CAPITAL GAIN, BUT CANNOT BE THE BASIS FOR LEVY OF PENALTY U/S 271 (1){C} OF THE IT ACT, 1961. THUS PENALTY SO IMPOSED U/S 271(1){C} OF THE ACT, THE LD. ITO & CONFIRMED BY THE LD. CIT(A)-II, JAIPUR DESERVES TO BE CANCELLED. 4) THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS IN LAW, THE LD. CIT(A)-II, JAIPUR AND ALSO LD. ASSESSING OFFICER WA RD 4(1), JAIPUR HAVE WRONGLY HELD THAT ALL THE FACTS MATERIAL TO THE COM PUTATION OF INCOME HAVE NOT BEEN DISCLOSED BY THE APPELLANT, WHEREAS T HE APPELLANT HAS NEITHER CONCEALED ANY FACTS CONSCIOUSLY NOR HAS FUR NISHED INCORRECT PARTICULARS DELIBERATELY. THE LD. ASSESSING OFFICE R WARD 4(1), JAIPUR HA WRONGLY TAKEN THE SHELTER OF SECTION 50-C OF THE IT ACT, 1961, WHICH IS DEEMING PROVISION & SAME CANNOT BE TAKEN BASIS FOR LEVY OF PENALTY U/S 271(1){C} OF THE IT ACT, 1961. THUS, PENALTY S O IMPOSED DESERVED TO BE QUASHED. 5) THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL BEFORE THE DATE OF HEARING. 2. ONLY EFFECTIVE GROUND OF THIS APPEAL IS AGAINST CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF THE IT ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE ORDER DATED 30.11.2012. WHILE FRAMING THE ASSESSMENT, THE AO NOTICED THAT THE ASSESSEE AS PER THE ITS DATA SOLD IMMOVABLE PROPERTY AMOUNTI NG TO RS. 1,16,71,800/- IT WAS OBSERVED BY THE ASSESSING OFFICER, THAT THE ASSESSE E HAD DECLARED SALE CONSIDERATION OF RS. 39 LAKHS AND ACCORDINGLY CALCULATED CAPITAL GAIN THEREON. THE ASSESSING OFFICER HOWEVER ADOPTED THE SALE CONSIDERATION OF R S. 1,07,40,030/- ON THE BASIS OF DLC RATE BY INVOKING THE PROVISION OF SECTION 50C. THE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) ON THE GROUND OF CONCEALMENT. SUBSEQUENTLY, THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C) VIDE ORDER DATED 3 ITA NO. 912/JP/2014 SHRI JHABAR SINGH, JAIPUR. 29 TH MAY, 2013. AGGRIEVED BY THIS, THE ASSESSEE PREFER RED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS DISMI SSED THE APPEAL. 4. AGGRIEVED BY THIS ORDER, NOW, THE ASSESSEE IS I N APPEAL BEFORE THIS HONBLE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. THE WRITTEN SUBMISSIONS AS MA DE BY THE LD. COUNSEL FOR THE ASSESSEE ARE REPRODUCED AS UNDER:- GROUNDS OF APPEAL NOS. 01 TO 04 : ALL OF THESE GROUNDS OF APPEAL PERTAIN TO THE CHALL ENGE MADE BY ASSESSEE TO THE IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT AT RS. 18,69,410/-, THEREFORE THE SAME ARE BEING CANVASSED TOGETHER FOR THE SAKE OF CONVENIENCE. BRIEF FACTS OF THE CASE ARE THAT, DURING THE YEAR U NDER APPEAL, THE ASSESSEE HAD SOLD AN IMMOVABLE PROPERTY FOR A CONSIDERATION OF RS. 39.00 LACS/- AND DECLARED CAPITAL GAIN OF RS. 7,72,522/- THEREON. H OWEVER, THE VALUE ADOPTED U/S 50C BY THE SUB-REGISTRAR FOR THE PURPOSE OF CHA RGING STAMP DUTY IS RS. 1,07,40,030/-. THE LD. AO, ACCORDINGLY, INVOKED TH E PROVISIONS OF SECTION 50C AND COMPUTED THE CAPITAL GAIN AT RS. 83,64,430/- AF TER REDUCING THE INDEXED COST OF ACQUISITION AT RS. 31,27,478/- OUT OF THE C ONSIDERATION DETERMINED U/S 50C OF THE ACT FOR WHICH ASSESSEE HAS ALSO CONSENTE D. ACCORDINGLY, AN ADDITION OF RS. 75,91,908/- WAS MADE ON ACCOUNT OF CAPITAL GAIN. SINCE THE ASSESSEE HAS ACCEPTED THE ADDITION THUS IT WAS NOT CHALLENGED IN APPEAL AND DUE TAXES WERE DULY PAID. THEREAFTER, THE LD. AO P ROCEEDED WITH THE PENDING PENALTY PROCEEDINGS AND IMPOSED PENALTY U/S 271(1)( C) AT RS. 18,69,410/- ON ACCOUNT OF SUCH ADDITION. IT IS SUBMITTED THAT IN THE INSTANT CASE, THE PENAL TY U/S 271(1)(C) HAS BEEN LEVIED MERELY ON ACCOUNT OF THE ADDITIONS MADE BY L D. AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS WITHOUT IN ANY MANNER SPECIF YING AS TO HOW THOSE ADDITIONS INDICATE ANY CONCEALMENT OF INCOME ON PAR T OF ASSESSEE OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IT IS SUBMITTED THAT, NO PENALTY U/S 271(1)(C) CAN BE LEVIED ON ACCOUNT OF ADDITIONS MADE BEING THE DIFFERENTIAL VALUE OF DECL ARED CONSIDERATION AND THE VALUE ADOPTED BY THE SUB-REGISTRAR FOR THE PURPOSE OF STAMP DUTY IN TERMS OF PROVISIONS OF U/S 50C IN AS MUCH AS THE ADDITION SO MADE IS ON ACCOUNT OF A DEEMING FICTION CREATED BY SECTION 50C IN AS MUCH A S THE ADDITION SO MADE IS ON ACCOUNT OF A DEEMING FICTION CREATED BY SECTION 50C AND THUS, THE ADDITION BEING IN THE NATURE OF DEEMED INCOME NEITHER AMOUNT S TO CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME IN VIEW OF VARIOUS JUDICIAL PRONOUNCEMENTS ON THE ISSUE. 4 ITA NO. 912/JP/2014 SHRI JHABAR SINGH, JAIPUR. IT IS SUBMITTED THAT, SECTION 50C OF THE INCOME TAX ACT, 1961 CREATES A LEGAL FICTION WITH EFFECT OF WHICH THE VALUE OF A PARTICU LAR PROPERTY AS ADOPTED BY THE STAMP VALUATION AUTHORITIES FOR STAMP DUTY PURP OSES IS DEEMED TO BE THE FULL VALUE OF CONSIDERATION FOR THE PURPOSE OF COMP UTING CAPITAL GAIN U/S 48 OF THE ACT IN SPITE OF THE FACT THAT THE ACTUAL CONSID ERATION RECEIVED BY ASSESSEE IS LESS THAN THE VALUE SO DEEMED TO BE THE FULL VAL UE OF CONSIDERATION. IT IS SUBMITTED THAT THE ACTUAL AMOUNT RECEIVED BY THE AS SESEE ON ACCOUNT OF SALE OF THE CAPITAL ASSET IS RS. 39,00,000/- WHICH FACT HAS NEITHER BEEN DOUBTED BY THE LD. AO, NOR HAS ANY EFFORT BEEN MADE TO DISPROV E THE SAME NOR ANY MATERIAL HAS BEEN BROUGHT ON RECORD BY THE LD. AO T O SHOW THAT THE ASSESSEE HAS IN ANY MANNER RECEIVED ANY AMOUNT OVER AND ABOV E WHAT HAS BEEN DISCLOSED AND AGREED UPON IN THE SALE DEED AND IN T HE RETURN OF INCOME. WITH THIS BACKGROUND, IT BECOMES CLEAR THAT THE ASSESSEE HAS TRULY AND CORRECTLY DISCLOSED HIS INCOME AND HAD FURNISHED ACCURATE PAR TICULARS OF INCOME IN THE RETURN OF INCOME FILED BY HIM AND THEREFORE, NO INF ERENCE OF ANY CONCEALMENT CAN BE DRAWN AGAINST ASSESEE MERELY BECAUSE THE VAL UE OF THAT PROPERTY HAS BEEN ESTIMATED ON A HIGHER SIDE BY THE STAMP VALUAT ION AUTHORITY. MOREOVER, VALUATION OF A PROPERTY ON A HIGHER SIDE CANNOT IPS O FACTO LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS RECEIVED ANY CONSI DERATION OVER AND ABOVE THE CONSIDERATION MENTIONED BY HIM IN THE SALE DEED AND DISCLOSED IN THE RETURN OF INCOME, ESPECIALLY WHEN THERE IS NO SUCH ALLEGATION IN THE ASSESSMENT ORDER ITSELF. FURTHER, IT HAS BEEN HELD BY COURTS FROM TIME TO TIME THAT NO PENALTY CAN BE LEVIED U/S 271(1)(C) MERELY BECAUSE THE ASSESEE DID NOT VOLUNTARILY APPLY PROVISIONS OF SECTION 50C. T HEREFORE, MERELY ON ACCOUNT OF ADDITION MADE BY INVOKING SECTION 50C PENALTY U/ S 271(1)(C) CANNOT BE LEVIED FOR THE REASON THAT NO ALLEGATION OF ANY CON CEALMENT OR UNDERSTATEMENT OF SALE CONSIDERATION HAS BEEN MADE EITHER IN THE A SSESSMENT ORDER OR IN THE PENALTY ORDER. THE ABOVE CONTENTION OF ASSESSEE FINDS SUPPORT FROM THE FOLLOWING JUDICIAL PRONOUNCEMENTS WHICH SQUARELY COVER THE CASE OF ASS ESSEE: CIT VS. MADAN THEATRES LTD., 260 CTR (CAL) 7 (CAL H C) 3. THE REVENUE PREFERRED AN APPEAL. THE LD. TRIBUN AL DISMISSED THE APPEAL HOLDING INTER ALIA, AS FOLLOWS: THUS OBVIOUSLY, IT IS ONLY ON ACCOUNT OF DEEMING PR OVISIONS OF S. 50C, THE AO HAS MADE THE ADDITION BY ADOPTING THE SALE CONSIDERATIO N OF RS. 5,19,77,000, BEING THE VALUE ADOPTED FOR THE PURPOSE OF STAMP VALUATION. THE REVENUE HAS ALSO NOT SHOWN AS TO HOW THE ASSESSEE COULD BE HELD TO HAVE ACTUAL LY RECEIVED THIS AMOUNT WHICH IS IN EXCESS OF THE AMOUNT OF RS. 2,51,50,000. IT IS HAS ALSO NOT BEEN SHOWN AS TO WHETHER ANY CORRESPONDING ADDITION HAS BEEN MADE IN THE HANDS OF THE BUYER. IN ANY CASE, THE ISSUE IS ALSO NOW SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH 5 ITA NO. 912/JP/2014 SHRI JHABAR SINGH, JAIPUR. OF THIS TRIBUNAL IN THE CASE OF RENU HINGORANI (SUP RA). IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDIN ATE BENCH OF THIS TRIBUNAL IN THE CASE OF RENU HINGORANI (SUPRA) AS ALSO ON ACCOUNT O F THE FACT THAT THE REVENUE HAS NOT BEEN ABLE TO DISLODGE THE FINDINGS OF THE LD. C IT(A) THAT THE BONA FIDES OF THE ASSESSEE ARE GENUINE, THE FINDINGS OF THE LD. CIT(A ) STAND CONFIRMED. IN THE CIRCUMSTANCE, THE APPEAL OF REVENUE IS DISMISSED. 4. MR. NIAUMUDDIN, LD. ADVOCATE APPEARING FOR REVE NUE, CONTENDED THAT THE ASSESSEE HAD A CHOICE TO DISPUTE THE VALUATION ON T HE BASIS OF THE DEEMED VALUE, BUT THE ASSESSEE DID NOT TAKE THAT OPPORTUNITY. THE AS SESSEE HAD A CHOICE OR HE COULD HAVE LITIGATED. THE FACT REMAINS THAT THE ACTUAL A MOUNT RECEIVED WAS OFFERED FOR TAXATION. IT IS ONLY ON THE BASIS OF THE DEEMED CO NSIDERATION THAT THE PROCEEDINGS UNDER S. 271(1)(C) STARTED. THE REVENUE HAS FAILED TO PRODUCE ANY IOTA OF EVIDENCE THAT THE ASSESSEE ACTUALLY RECEIVED ONE PAISE MORE THAN THE AMOUNT SHOWN TO HAVE BEEN RECEIVED BY HIM. 5. WE ARE, AS SUCH, OF THE OPINION THAT IS NO SCOP E TO ADMIT THE APPEAL SINCE THE SAME DOES NOT RAISE ANY QUESTION OF LAW, SUBSTANTIA L OR OTHERWISE. THE APPEAL IS, THEREFORE, REJECTED. LATE SMT. URMILA TYAGI, VS. ITO, DAUSA ITA NO. 911/ JP/14 [ITAT, JAIPUR] . IT IS NOT THE CASE OF REVENUE THAT THE ASSESSEE HAS ACTUALLY RECEIVED ANY AMOUNT OVER AND ABOVE RS. 50 LACS AND WHICH HAS NOT REFLEC TED AND OFFERED IN HER RETURN OF INCOME. IT IS ONLY ON ACCOUNT OF DEEMING FICTION C REATED BY SECTION 50C OF THE ACT THAT THE AD HAS BROUGHT THE DEEMED SALE CONSIDERATI ON TO TAX IN THE HANDS OF THE ASSESSEE. IN OUR VIEW, WHERE A DEEMED SALE CONSIDE RATION IS BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE UNDER A DEEMING FICTION, THE SAME CANNOT LEAD TO LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE IS SUE IS ALSO COVERED BY THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN CASE OF MADAN TH EATERS LTD. AND CO-ORDINATE BENCH IN CASE OF RENU HINGORANI, CHIMANLAL MANILAL PATEL. HENCE, RESPECTFULLY FOLLOWING THE SAME, WE DELETE THE LEVY OF PENALTY I N RESPECT OF ADDITIONS UNDER SECTION 50C OF THE ACT. (APB 21) ANITA BENIWAL VS. ITO, ITA NO. 743/JP/2012 (ITAT, J AIPUR) 6 ITA NO. 912/JP/2014 SHRI JHABAR SINGH, JAIPUR. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE ASSESSEE HAD SHOWN SA LE CONSIDERATION AT RS. 8LACS WHEREAS AS PER SECTION 50C OF THE ACT, THE STAMP AU THORITY HAS ASSESSED THE VALUE OF PROPERTY AT RS. 12,35,730/-. THERE WAS DIFFERENCE A T RS. 4,75,658/- IN THE CAPITAL GAIN, WHICH HAS BEEN ACCEPTED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE CASE LAW REFERRED BY THE ASSESSEE ARE SQUARELY APPLICABLE. IN THIS CASE ALSO, THERE IS NO EVIDENCE WITH THE REVENUE TO PROVE THAT THE ASSESSEE HAS RECEIVED MUCH MORE THAN REFLECTED IN THE RETURN. T HE ADDITION WAS ON ACCOUNT OF DEEMING PROVISION, THEREFORE, WE DELETE THE PENALTY CONFIRMED BY THE LD. CIT(A). (APB 30) RENU HINGORANI VS. ACIT, ITA NO. 2210/MUM/2010 (ITA T MUMBAI) 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND RE LEVANT RECORD. WE FIND THAT THE AO HAD MADE ADDITION OF RS. 9,00,824/- BEING DIFFER ENCE BETWEEN THE SALE CONSIDERATION AS PER SALE AGREEMENT AND THE VALUATI ON MADE BY THE STAMP VALUATION AUTHORITY. THUS, THE ADDITION HAS BEEN MADE BY THE AO BY APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT. IT IS EVIDENT FROM THE ASS ESSMENT ORDER THAT THE AO HAS NOT QUESTIONED THE ACTUAL CONSIDERATION RECEIVED BY THE ASSESSEE BUT THE ADDITION IS MADE PURELY ON THE BASIS OF DEEMING PROVISIONS OF T HE INCOME TAX ACT, 1961. THE AO HAS NOT GIVEN ANY FINDING THAT THE ACTUAL SALE CONS IDERATION IS MORE THAN THE SALE CONSIDERATION ADMITTED AND MENTIONED IN THE SALE AG REEMENT. THUS, IT DOES NOT AMOUNT TO CONCEALMENT OF INCOME OR FURNISHING INACC URATE PARTICULARS OF INCOME. IT IS ALSO NOT THE CASE OF THE REVENUE THAT THE ASSESS EE HAS FAILED TO FURNISH THE RELEVANT RECORD AS CALLED BY THE AO TO DISCLOSE THE PRIMARY FACTS. THE ASSESSEE HAS FURNISHED ALL THE RELEVANT FACTS, DOCUMENTS/MATERIAL INCLUDIN G THE SALE AGREEMENT AND THE AO HAS NOT DOUBTED THE GENUINENESS AND VALIDITY OF THE DOCUMENTS PRODUCED BEFORE HIM AND THE SALE CONSIDERATION RECEIVED BUY THE ASSESSE E. UNDER THESE FACTS AND CIRCUMSTANCES, IT CANNOT BE SAID THAT THE ASSESSEE HAS NOT FURNISHED CORRECT PARTICULARS OF INCOME. MERELY BECAUSE THE ASSESSEE AGREED FOR ADDITION ONE THE BASIS OF VALUATION MADE BY THE STAMP VALUATION AUTHORITY WOULD NOT BE A CONCLUSIVE PROOF THAT THE SALE CONSIDERATION AS PER THIS AGREEMENT W AS INCORRECT AND WRONG. ACCORDINGLY THE ADDITION BECAUSE OF THE DEEMING PRO VISIONS DOES NOT IPSO FACTO ATTRACT THE PENALTY U/S 271(1)(C). HENCE, IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. (SUPRA), THE PENALTY LEVIED U/S 271(1)(C) IS NOT SUSTAINABLE. T HE SAME IS DELETED. CHIMANLAL MANILAL PATEL VS. ITO ITA NO. 508/AHD/201 0 (ITAT AHEMDABAD) 7 ITA NO. 912/JP/2014 SHRI JHABAR SINGH, JAIPUR. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IN IS A FACT THAT THE ADDITION HAS BEEN MADE BY THE AO IN T HE REVISIONARY PROCEEDINGS. THE ADDITION HAS BEEN MADE ON THE BASIS OF PROVISIONS O F SECTION 50C. IT IS NOT THE CASE OF THE AO THAT THE ASSESSEE HAS RECEIVED CONSIDERATION OVER AND ABOVE THAN THAT DECLARED IN THE SALE DEED. THE AO HAS NOT DISPUTED THE CONSIDERATION RECEIVED BY THE ASSESSEE. THE ADDITION HAS BEEN MADE ON THE BASIS OF DEEMING PROVISIONS OF SECTION 50. THE ASSESSEE HAS FURNISHED ALL THE FACTS OF SA LE, DOCUMENTS/MATERIAL BEFORE THE AO. THE AO HAS NOT DOUBTED THE GENUINENESS OF THE DOCUMENTS/DETAILS FURNISHED BY THE ASSESSEE. ONLY BECAUSE THE ASSESSEE AGREED TO THE ADDITIONS BECAUSE OF THE DEEMING PROVISIONS IT CANNOT BE CONSTRUED TO BE FIL ING OF INACCURATE PARTICULARS ON THE PART OF THE ASSESSEE. THE ASSESSEE AGREED TO ADDIT ION ON THE BASIS OF VALUATION MADE BY THE STAMP VALUATION AUTHORITY CANNOT BE A CONCLU SIVE PROOF THAT THE SALE CONSIDERATION A PER THE SALE AGREEMENT IS DEEMED TO BE INCORRECT AND WRONG. IN VIEW OF THESE FACTS WE ARE OF THE CONSIDERED VIEW THAT P ENALTY CANNOT BE LEVIED ON THE BASIS OF DEEMING PROVISION. WE ACCORDINGLY DELETE THE SAME. IT IS THUS SUBMITTED THAT IN NO CIRCUMSTANCE PENALT Y U/S 271(1)(C) COULD HAVE BEEN LEVIED AND THEREFORE, THE PENALTY SO LEVIED AT RS. 81,69,410/- DESERVED TO BE DELETED. 5. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVES OPPOSED THE SUBMISSIONS. HOWEVER, CONCEDED THAT THE ISSUE IS SQ UARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE CO-ORDINATE BENCH I N THE CASE OF ANITA BENIWAL IN ITA NO. 743/JP/2012 AND ALSO JUDGEMENT OF THE HONB LE CALCUTTA HIGH COURT RENDERED IN THE CASE CIT VS MADAN TEATER LTD. THE L D. DEPARTMENTAL REPRESENTATIVES CONCEDED THE FACT THAT THE ISSUE IS DECIDED BY THE HONBLE TRIBUNAL AGAINST THE REVENUE BY FOLLOWING THE JUDGMENT OF TH E HONBLE CALCUTTA HIGH COURT. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS CONTENDED THAT THE FACTS ARE IDENTIC AL AS WERE IN ITA NO. 743/JP/2012 IN THE CASE OF ANITA BENIWAL V/S ITO. THE CO-ORDIN ATE BENCH OF THIS TRIBUNAL DECIDED THIS ISSUE AS UNDER:- 8 ITA NO. 912/JP/2014 SHRI JHABAR SINGH, JAIPUR. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE ASSESSEE HAD SHOWN SALE CONSIDERATION AT RS. 8 LACS WHEREAS AS PER SECTION 50 OF THE ACT, THE STAMP AUTHORITY HAS ASSESSED THE VALUE OF PROPERTY AT RS. 12,35,730/-, THERE WAS DIFFERENCE AT RS. 4,75,658/- IN THE CAPITAL GAIN, WHICH HAS BEEN ACCE PTED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE C ASE LAW REFERRED BY THE ASSESSEE ARE SQUARELY APPLICABLE. IN THIS CAE ALSO, THERE IS NO EVIDENCE WITH THE REVENUE TO PROVE THAT THE ASSESSEE HAS RECEIVED MUCH MORE THAN REFLECTED IN THE RETURN. THE ADDITION WAS ON ACCOU NT OF DEEMING PROVISION, THEREFORE, WE DELETE THE PENALTY CONFIRMED BY THE L D. CIT(A). 6.1 IN THE PRESENT CASE ALSO, THE FACTS ARE IDENTIC AL AS IN THE CASE OF ANITA BENIWAL. IN THIS CASE ALSO THE PENALTY HAS BEEN LE VIED ON THE BASIS THAT THE ACTUAL SALE CONSIDERATION WAS LESSER THAN THE VALUE ADOPTE D BY THE STAMP VALUATION AUTHORITY. THE REVENUE HAS NOT BROUGHT ANY MATERIA L ON RECORD SUGGESTING THAT THE ASSESSEE HAD RECEIVED ACTUAL CONSIDERATION AS ADOPT ED BY THE STAMP VALUATION AUTHORITY. THEREFORE, WE DO NOT SEE ANY REASON FOR TAKING A DIFFERENT VIEW AS ADOPTED BY THE CO-ORDINATE BENCHES OF THIS HONBLE TRIBUNAL, AT THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. MADAN TEATRES LTD . WE THEREFORE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO. 912/JP/2014 IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON MONDAY, T HE 17 TH DAY OF APRIL 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER 9 ITA NO. 912/JP/2014 SHRI JHABAR SINGH, JAIPUR. JAIPUR DATED:- 17 /04/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI JHABAR SINGH, JAIPUR. 2. THE RESPONDENT THE ITO WARD 4(1), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 912/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR