Shri Ashwinbhai Kantilal Parikh, Ahmedabad V. Income Tax Officer, Ward-14(2), Ahmedabad

ITA 927/AHD/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8592 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 12-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M J SHAH
• Keywords: Cost of acquisition; Fair market value; Valuation report; Revised return
• Section: 54

Judgement Text

, ,L ,L,L ,L- -- -,E ,E,E ,E- -- -LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL (SMC) A BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER !# I.T.A. NO. 927/AHD/2016 ( / ASSESSMENT YEAR : 2011-12) SHRI ASHWINBHAI KANTILAL PARIKH A-2, NEHAL APARTMENTS, OPP. NARANPURA POST OFFICE, NARANPURA, AHMEDABAD - 13 # VS. INCOME TAX OFFICER WARD 14(2), AHMEDABAD. $ # % & # PAN/GIR NO. : AHHPP 7042 F ( !$' / APPELLANT ) .. ( ($' # RESPONDENT ) !$' ) # APPELLANT BY : SHRI M. J. SHAH, A.R. ($'*) / RESPONDENT BY : SHRI RAJ DEEP SINGH, SR.D.R. + ,*-. / DATE OF HEARING 30/08/2017 /012*-. / DATE OF PRONOUNCEMENT 07/09/2017 3# O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-5, ASHRAM ROAD, AHMEDABAD DATED 10/02/2016 FOR THE ASSESSMENT YEAR (AY) 2011- 12, ON THE FOLLOWING GROUNDS: THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE PENA LTY OF RS.50,280/- U/S.271(1)(C) OF THE INCOME TAX ACT, 1961. ITA NO. 927/AHD /2016 SHRI ASHWINBHAI KANTILAL PARIKH VS. ITO ASST.YEAR 2011-12. - 2 - 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- DURING THE PERIOD UNDER CONSIDERATION, ASSESSEE JOI NTLY WITH HIS TWO BROTHERS, SOLD THE HOUSE PROPERTY VIDE THE SALE DOCUMENT REGISTERED WITH THE SUB-REGISTRAR VADAJ, AHMEDABAD-2 FOR THE T OTAL SALE CONSIDERATION OF RS.1,19,28,000/-. DURING THE ASSESSMENT PROCEEDING ASSESSEE WAS ASKE D TO SUBMIT WORKING OF CAPITAL GAIN RESULTING THE SALE TRANSACT ION OF HOUSE PROPERTY MADE BY HIM, WHICH WAS SUBMITTED BY ASSESSEE VIDE S UBMISSION DATED 05/12/2012. AS PER THE SUBMISSION, IT WAS SUBMITTED BY ASSESSEE THAT THE PROPERTY WHICH WAS SOLD DURING THE YEAR, WAS INHERI TED FROM HIS FATHER. AS THE PROPERTY WAS BOUGHT BY HIS FATHER BEFORE THE YEAR 1981-82, ASSESSEE HAS CLAIMED COST OF ACQUISITION AT RS.11,7 2,175/- AS ON 01/04/1981. ASSESSEE HAS ALSO SUBMITTED THE VALUATI ON REPORT FROM APPROVED VALUER FOR VALUATION OF PROPERTY. TAKING T HE COST OF ACQUISITION AT RS.11,72,175/- AS ON 01/04/1981, ASSESSEE HAS WO RKED OUT THE QUANTUM OF LONG TERM CAPITAL GAIN ARISING OUT OF THE SALE O F SAID PROPERTY AT RS.11,97,945/-(FOR HIS SHARE AT 33.33%). ASSESSEE HAS ALSO PURCHASED A NEW RESIDENTIAL FLAT ON 30/07/2009 FOR THE TOTAL SA LE CONSIDERATION OF RS.17,25,001/-. ASSESSEE HAS ALSO PAID RS.1,02,000/ - AS STAMP DUTY AND REGISTRATION CHARGES WHILE PURCHASING THE NEW FLAT. BY PURCHASING THE NEW RESIDENTIAL FLAT WITHIN TIME LIMIT AS PER PROVI SION OF SECTION 54 OF THE I.T. ACT, ASSESSEE HAS CLAIMED EXEMPTION U/S.54 OF THE I.T. ACT. ITA NO. 927/AHD /2016 SHRI ASHWINBHAI KANTILAL PARIKH VS. ITO ASST.YEAR 2011-12. - 3 - TO ASCERTAIN THE FAIR MARKET VALUE OF THE SOLD PROP ERTY AS ON 01/04/1981, REFERENCE FOR VALUATION OF THE PROPERTY AS ON 01/04/1981, U/S.55A OF THE I.T. ACT, WAS MADE TO AVO, ABAD ON 08/11/2013 VALUATION REPORT OF THE PROPERTY WAS RECEIVED AND T HE FAIR MARKET VALUE FOR THE SOLD PROPERTY WAS VALUED AT RS.7,69,801/-. CONSIDERING THE VALUATION REPORT FROM AVO, ABAD, ASSESSEE WAS ASKE D TO SUBMIT REVISED CALCULATION OF CAPITAL GAIN, WHICH WAS SUBMITTED BY ASSESSEE VIDE HIS SUBMISSION DATED 05/02/2014. THE LONG TERM CAPITAL GAIN WORKOUT RS.2,21,477/- IS ADDED TO HIS TOTAL INCOME FOR ASST. YEAR 2011-12. AS THE LONG TE RM CAPITAL GAIN, WHICH WAS NOT DECLARED IN TOTAL INCOME FOR A.Y. 2011-12 W HILE FILING RETURN BY ASSESSEE. IN VIEW OF THE AFORESAID FACT LD. AO INIT IATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT FOR FILING INA CCURATE PARTICULARS OF INCOME WITH THE VIEW OF SUPPRESS THE INCOME. DURING THE ASSESSMENT PROCEEDING, DETAILS OF DEMAT ACCOUNT HELD BY ASSESSEE FOR PERIOD UNDER CONSIDERATION WERE CAL LED FOR, WHICH WERE SUBMITTED BY ASSESSEE, WHICH IS KEPT ON RECORD. ASS ESSEE HAS ALSO OFFERED THE SHORT TERM CAPITAL GAIN AMOUNTING TO RS.24,646/ - FOR TAX U/S.111A OF THE I.T. ACT VIDE HIS LETTER DATED 05/02/2014 FILED WITH THE LD. AO. SINCE ASSESSEE HAS NOT OFFERED THE SHORT TERM CAPITAL GAI N AMOUNTING TO RS.24,646/- AT THE TIME OF FILING RETURN OF INCOME AND SAME WAS OFFERED FOR TAX AFTER RECEIVING NOTICE U/S.143(2) OF THE AC T. FOR THIS ALSO PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT WERE INITIATED . ITA NO. 927/AHD /2016 SHRI ASHWINBHAI KANTILAL PARIKH VS. ITO ASST.YEAR 2011-12. - 4 - ON VERIFICATION OF BANK STATEMENT IN THE NAME OF AS SESSEE FOLLOWING DETAILS WERE GATHERED. BANK ACCOUNT NO. BANK NAME WITH BRANCH AMOUNT OF IN TEREST CREDITED DURING F.AMOUNT OF INTEREST CREDITED DURING F.Y.2010-11 10090570195 SBI, NARANPURA BRANCH, ABAD RS.78,155/ - 30029577493 SBI, NARANPURA BRANCH, ABAD RS. 7,587/- 003010100370158 AXIS BANK, LAW GARDEN, ABAD RS. 847/- 0981101062601 CANARA BANK, NARANPURA, ABAD RS.20,0 74/- 07950100000317 BOB, NARANPURA, ABAD RS. 763/- FROM THE DETAILS, IT WAS FOUND THAT ASSESSEE HAS RE CEIVED RS.1,07,426/- AS INTEREST ON SAVING BANK ACCOUNT DU RING F.Y.2010-11. WHEREAS ASSESSEE HAS DECLARED ONLY 26,861/- AS BANK INTEREST WHILE FILING THE RETURN. ACCORDING THE AMOUNT OF RS.80,565/- WHI CH WAS NOT INCLUDING IN THE TOTAL INCOME FOR ASST. YEAR 2011-12 WHILE FI LING RETURN BY ASSESSEE. ASSESSEE HAS OFFERED THE AMOUNT OF RS.80, 565/- RECEIVED AS INTEREST AS INCOME FROM OTHER SOURCES VIDE HIS SUBM ISSION DATED 05/02/2014. SINCE ASSESSEE HAS NOT OFFERED THE INTEREST INCOME AMOUNT TO RS.80,565/- AT THE TIME OF FILLING RETURN OF INCOME AND SAME WAS OFFERED FOR TAX AFTER RECEIVING NOTICE U/S.143(2) OF THE AC T. IN THIS CASE, PENALTY WAS ALSO LEVIED. THE ORIGINAL ASSESSMENT WAS MADE BY DISALLOWING RS. 2,21,477/- UNDER THE HEAD OF LTCG VIDE ORDER DATED 13/02/2014. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT HAD CLAIMED RS.30,000/- TRANSFER FEES AND DEDUCTION OF RS.36,173/- U/S.24B, THE SAME WAS NOT ALLOWED BY THE AO WHILE PASSING THE ASSESSMENT ORDE R U/S.143(3), ITA NO. 927/AHD /2016 SHRI ASHWINBHAI KANTILAL PARIKH VS. ITO ASST.YEAR 2011-12. - 5 - THEREAFTER THE ASSESSING OFFICER RELIED THAT SHE HA D MADE A MISTAKE BY NOT ALLOWING SUCH CLAIM SHE HERSELF PASSED THE ORDER U/ S.154, IN THE SAID MANNER SHE SHOULD HAD ALLOWED THE IMPROVEMENT EXPEN SES WHICH WAS CLAIMED BY THE ASSESSEE AT THE TIME OF ASSESSMENT P ROCEEDINGS WHICH WAS FULLY ESTABLISHED BY THE APPELLANT BEFORE THE VALUA TION AUTHORITY AND THIS FACTS WAS ALSO BROUGHT TO THE NOTICE OF THE INCOME TAX OFFICER BY THE VALUATION OFFICER STILL HOWEVER THE INCOME TAX OFFI CER IN HER ASSESSMENT ORDER SHE HAD NOT MADE ANY COMMENTS ANY CLARIFICATI ON, EXPLANATION OR ANY REASON GIVEN FOR NOT ALLOWING SUCH CLAIMS AND N O ANY SHOW-CAUSE NOTICE WAS ISSUED TO THE APPELLANT. 3. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LEARNED CIT(A). LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 4. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. IN OUR OPINION IF SHE IS IN THAT OPINION NO TO ALLOW S HE SHOULD DISCLOSE HER MIND FOR SUCH ACTION HENCE IT IS CLEARLY UNDER THE HEAD OF MISTAKE APPARENT ON RECORD AND APPELLANT ENTITLE TO GET THE BENEFIT OF SECTION 154, WHEN THE MISTAKE DONE BY THE ITO HERSELF SHE PASS T HE ORDER U/S.154 THAT BENEFIT SHOULD HAVE BEEN GIVEN TO THE ASSESSEE. THE FACTS REMAINS THAT THE ASSESSEE FILED REVISED C OMPUTATION OF INCOME INCLUDING THE ABOVE INTEREST INCOME BEFORE F RAMING OF THE REGULAR ASSESSMENT. WE DRAW SUPPORTS FROM THE CASE OF PRICE WATERHUSE COOPERS PVT. LTD. VS. CIT(2012) 348 ITR 306 (SC) SQUARELY APPLY IN FACTS OF THE ITA NO. 927/AHD /2016 SHRI ASHWINBHAI KANTILAL PARIKH VS. ITO ASST.YEAR 2011-12. - 6 - INSTANT CASE WHEREIN THE SAID ASSESSEE HAD COMMITTE D A SILLY MISTAKE. IN THAT CASE PENALTY CANNOT BE IMPOSED. MOREOVER, ASSE SSEE HAS ALSO FILED REVISED RETURN BEFORE THE FRAMING OF THE REGULAR AS SESSMENT. IN OUR CONSIDERED OPINION, IN SUCH CASE PENALTY CANNOT BE CONFIRMED. THEREFORE, WE ALLOW ASSESSEES APPEAL. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 07/09/2017 SD/- SD/- ( ) 4 5 ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 07/09/2017 PRITI YADAV, SR. PS !'#$ %$' # COPY OF THE ORDER FORWARDED TO : 1. !$' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 67- + 8- / CONCERNED CIT 4. + 8- 4!5 / THE CIT(A)-5, AHMEDABAD. 5. 9:;-67 !.!672 ! / DR, ITAT, AHMEDABAD 6. ;<=, # GUARD FILE. & ' / BY ORDER, (9-- //TRUE COPY// (/' )* ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY