ITO (international Taxation)-1, Hyd, Hyderabad V. Maniza Jumabhoy, Hyd, Hyderabad

ITA 921/HYD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6226 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 17-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: U. MINI CHANDRAN
• Keywords: Sale consideration of property below Jantri Value; Capital Gains
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 271(1)(c); 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 921/HYD/2016 ASSESSMENT YEAR: 2007-08 THE INCOME TAX OFFICER, (INTERNATIONAL TAXATION)-1, HYDERABAD VS SMT. MANIZA JUMABHOY, HYDERABAD [PAN: AHLPJ3369F] (APPELLANT) (RESPONDENT) FOR REVENUE : SMT U. MINICHANDRAN, DR FOR ASSESSEE : SHRI C.S. SUBRAHMANYAM, AR DATE OF HEARING : 18-01-2017 DATE OF PRONOUNCEMENT : 25-01-2017 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-6, HYDERABAD D ATED 18-12-2015 FOR THE AY. 2007-08. THE ISSUE IN THIS AP PEAL IS WHETHER THE PENALTY U/S. 271(1)(C) INCOME TAX ACT [AC T] IS ATTRACTED WHEN THE ADDITION WAS MADE INVOKING THE DEEMING PROVIS IONS OF SECTION 50C OF THE ACT? 2. BRIEFLY STATED FACTS ARE THAT ASSESSEE OFFERED CAPITAL GAINS AND INVOKING THE PROVISIONS OF SECTION 50C, THE ASSESSING OFFICER (AO) MADE AN ADDITION OF RS. 2,11,90,100/-. THE AO HAS I MPOSED PENALTY U/S. 271(1)(C) BY TREATING THE ABOVE AMOUNT AS CONCEALED AMOUNT. LD.CIT(A) FOLLOWING THE JUDGMENT OF THE HON'B LE CALCUTTA I.T.A. NO. 921/HYD/2016 SMT. MANIZA JUMABHOY :- 2 - : HIGH COURT IN THE CASE OF CIT VS. MADAN THEATRES LTD., [44 TAXMAN.COM 382] HELD THAT PENALTY PROCEEDINGS ARE NOT W ARRANTED, HENCE THE PRESENT REVENUE APPEAL. 3. LD.DR RELIED ON THE ORDERS OF THE AO, WHEREAS LD.A R SUBMITTED THAT THE ORDER OF CIT(A) IS SUPPORTED BY THE FOL LOWING CASE LAW: I. ITA NO. 743/JP/2012 (AY.2008-09) ANITA BENIWAL VS. ITO, DT. 05-06-2015 (ITAT, JAIPUR); II. CIT VS. FORTUNE HOTELS AND ESTATES (P) LTD., [52 TAXMANN.COM 330 (BOMBAY)]; III. ITA NO. 6383/MUM/2012 (AY.2007-08) HARISH VOOVAYA SHETTY VS. ITO, DT. 03-07-2014 (ITAT, MUMBAI); IV. CIT VS. MADAN TEATRES LTD., [42 TAXMANN.COM 26 (CALCUTTA)]; V. ITA NO. 508(MAD) OF 2008; ACIT VS. MRS. N. MEENAKSH I [125 TTJ 856] (ITAT, CHENNAI); 4. AFTER CONSIDERING THE RIVAL CONTENTIONS AND PERUSIN G THE FACTS ON RECORD, WE AGREE WITH THE ORDER OF THE LD.CIT(A) TH AT ADDITION WHICH WAS MADE BY INVOKING THE DEEMING PROVISIONS U /S. 50C DOES NOT ATTRACT PENALTY U/S. 271(1)(C). THIS ISSUE IS WEL L SETTLED BY VARIOUS COURTS WHEREIN IT HAS BEEN HELD THAT PENALTY U /S. 271(1)(C) IS NOT LEVIABLE WHERE INCOME IS ASSESSED ON THE BASIS OF DEEMED CONSIDERATION U/S. 50C, AS REVENUE HAS FAILED TO PROD UCE ANY EVIDENCE THAT ASSESSEE ACTUALLY RECEIVED MORE THAN THE AMOUNT SHOWN TO HAVE BEEN RECEIVED. THE CASE LAW REFERRED TO BY ASSESSEE IS SQUARELY APPLICABLE TO THE PRESENT CASE. IN VIEW OF THAT, SINCE I.T.A. NO. 921/HYD/2016 SMT. MANIZA JUMABHOY :- 3 - : ADDITION WAS ON ACCOUNT OF DEEMING PROVISION, WE CONF IRM THE ORDER OF THE CIT(A) DELETING PENALTY U/S. 271(1)(C). THERE IS NO MERIT IN REVENUES CONTENTIONS, ACCORDINGLY, THE GROUND IS REJECTED. 5. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JANUARY, 2017 SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEM BER HYDERABAD, DATED 25 TH JANUARY, 2017 TNMM COPY TO : 1. THE INCOME TAX OFFICER (INTERNATIONAL TAXATION)- 1 , HYDERABAD. 2. SMT. MANIZA JUMABHOY, 8-2-584, SANGRILLA ROAD NO . 9, BANJARA HILLS, HYDERABAD. 3. CIT (APPEALS)-6, HYDERABAD. 4. THE PR.CIT-6, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.