SHRI HARISH KUMAR VASWANI, JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2, JAIPUR

MA 15/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4677 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 16-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bonafide belief; Initiation of penalty proceedings
• Section: 271(1)(c); 254(2); 54

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 15/JP/2019 (ARISING OUT OF ITA NO. 1040/JP/2018) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2014-15 SH. HARISH KUMAR VASWANI 3, DHULA HOUSE ROAD, BAPU BAZAR, JAIPUR CUKE VS. THE ITO, CIRCLE-02, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AATPK6505D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P. C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT RUNI PAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/12/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 21/02/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER IN ITA NO. 1040/JP/2018 DATED 06/12/2018. 2. IN ITS APPLICATION, THE ASSESSEE HAS SUBMITTED T HAT THE APPLICANT BEGS TO SUBMIT THAT THE ORDER, GIVING RIS E TO THE PRESENT MISCELLANEOUS APPLICATION WAS RECEIVED ON 12.12.201 8. 3. IT WAS SUBMITTED THAT IN THIS APPEAL, ASSESSEE H AS CHALLENGED THE LEVY OF PENALTY OF RS.4 LACS U/S 271(1)(C) OF T HE IT ACT BOTH ON LEGALITY AND ON MERIT. ON LEGALITY, THE ITAT AFTER RELYING ON ITS OWN M.A. NO. 15/JP/2019 SH. HARISH KUMAR VASWANI, JAIPUR VS. I TO, CIRCLE-2, JAIPUR 2 DECISION IN CASE OF SHIPRA JAIN & ORS. VS. ACIT IN ITA NO.922/JP/2018 ORDER DT. 31.10.2018 WHEREIN THE DEC ISION OF HON'BLE ITAT AMRITSAR THIRD MEMBER BENCH IN CASE OF HPCL MITTAL ENERGY LTD. VS. ACIT ITA NO. 554 & 555/ASR/2014 ORD ER DT. 07.05.2018 HAS BEEN CONSIDERED, GAVE THE FOLLOWING FINDINGS AT PARA 9 OF THE ORDER:- 'IN THE INSTANT CASE, WE FIND THAT THE NOTICE INITI ATING THE PENALTY PROCEEDINGS IS UNCERTAIN WHERE THE AO USES THE EXPR ESSION 'CONCEALMENT PARTICULARS OF INCOME OR FURNISHED INA CCURATE PARTICULARS OF INCOME'. HOWEVER, DURING THE PENALTY PROCEEDINGS, HE HAS GIVEN A DECISIVE AND CLEAR FINDING AS REFLECTED IN THE PENALTY ORDER THAT THE ASSESSEE IS GUILTY OF FURNISHING INA CCURATE OF PARTICULARS OF INCOME' AS THE ASSESSEE, IN ITS ORIG INAL COMPUTATION HAS DELIBERATELY AVOIDED DISCLOSING TRUE PARTICULARS AN D FURNISHED INACCURATE PARTICULARS BY CLAIMING WRONG EXEMPTION U/S 54, WHICH WAS AS SUCH NOT AVAILABLE TO THE ASSESSEE. THEREFOR E, FOLLOWING THE LEGAL PROPOSITION AS DISCUSSED ABOVE, WE ARE UNABLE TO ACCEDE TO THE AFORESAID CONTENTION OF THE LD AR.' 4. IT WAS SUBMITTED THAT THE ITAT AMRITSAR THIRD ME MBER BENCH IN CASE OF HPCL MITTAL ENERGY LTD. VS. ACIT AT PARA 21 HELD THAT IF THE AO IS NOT SURE AT THE STAGE OF INITIATION OF PE NALTY PROCEEDINGS OF THE PRECISE CHARGE AS TO 'CONCEALMENT OF PARTICU LARS OF INCOME' OR 'FURNISHING OF INACCURATE PARTICULARS OF INCOME', H E MAY USE SLASH BETWEEN THE TWO EXPRESSIONS AT THE TIME OF INITIATI ON OF PENALTY PROCEEDINGS. HOWEVER, DURING THE PENALTY PROCEEDING S HE MUST GET DECISIVE WHICH SHOULD BE REFLECTED IN THE PENALTY O RDER, AS TO WHETHER THE ASSESSEE IS GUILTY OF 'CONCEALMENT OF P ARTICULARS OF M.A. NO. 15/JP/2019 SH. HARISH KUMAR VASWANI, JAIPUR VS. I TO, CIRCLE-2, JAIPUR 3 INCOME' OR 'FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME'. UNCERTAIN CHARGE AT THE TIME OF INITIATION OF PENAL TY MUST NECESSARILY BE SUBSTITUTED WITH A CONCLUSIVE DEFAUL T AT THE TIME OF PASSING THE PENALTY ORDER. IF THE PENALTY IS INITIA TED WITH DOUBT AND ALSO CONCLUDED WITH A DOUBT AS TO THE CONCEALMENT O F PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF S UCH INCOME ETC., THE PENALTY ORDER IS VITIATED. 5. IT WAS SUBMITTED THAT IN THE PRESENT CASE, IN TH E ASSESSMENT ORDER PENALTY PROCEEDINGS IS INITIATED FOR CONCEALM ENT OF INCOME/ FURNISHING INACCURATE PARTICULARS OF INCOME, PENALT Y NOTICE IS ISSUED FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME AND PENALTY IS IMPOSED AT PAR A 3 OF THE PENALTY ORDER BY STATING THAT ASSESSEE IS FOUND GUILTY OF F URNISHING INACCURATE PARTICULARS OF INCOME BUT PENALTY IS IMPOSED ON THE CONCEALED INCOME. THUS, THERE IS UNCERTAIN CHARGE AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS AND ALSO AT THE TIME OF PASSING THE PENALTY ORDER. THIS HAS BEEN OVERLOOKED BY ITAT WHILE UPHOL DING THE LEGALITY OF THE PENALTY ORDER WHICH IS A MISTAKE APPARENT ON RECORD. 6. IT WAS FURTHER SUBMITTED THAT ON MERITS, THE ITA T AT PARA 10 OBSERVED THAT THERE IS A CLEAR CUT LACK OF DISCLOSU RE AS TO THE NATURE OF PROPERTY AND THEREFORE, ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S 54 ON PURCHASE OF SHOP AFTER SALE OF SHOP IS A CLEA R CUT CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME. HOWEVE R, THE CLAIM OF ASSESSEE THAT HE WAS UNDER A BONAFIDE BELIEF THAT D EDUCTION U/S 54 IS AVAILABLE ON PURCHASE OF A PROPERTY AFTER SALE O F ANOTHER PROPERTY AND THEREFORE, WHEN IT CAME TO HIS NOTICE THAT DEDU CTION U/S 54 IS AVAILABLE ON PURCHASE OF RESIDENTIAL PROPERTY AFTER SALE OF RESIDENTIAL M.A. NO. 15/JP/2019 SH. HARISH KUMAR VASWANI, JAIPUR VS. I TO, CIRCLE-2, JAIPUR 4 PROPERTY, HE SUO MOTO FILED REVISED COMPUTATION AND PAID TAX AND THUS, HE CLAIMED THE DEDUCTION UNDER A MISTAKEN BEL IEF HAS NOT BEEN DECIDED. THE ASSESSEE'S ARGUMENT THAT EVEN IF THE P ENALTY IS HELD IMPOSABLE, IT SHOULD BE 100% OF THE TAX SOUGHT TO B E EVADED, I.E. RS.3,66,680/- AS AGAINST PENALTY OF RS.4 LACS IMPOS ED BY THE AO HAS ALSO NOT BEEN DECIDED. SINCE THE ABOVE MISTAKES ARE APPARENT ON RECORD, IT IS REQUESTED TO KINDLY PASS APPROPRIATE ORDER U/S 254 OF THE IT ACT. 7. THE LD DR IS HEARD WHO HAS RELIED ON THE ORDER O F THE TRIBUNAL AND SUBMITTED THAT THE TRIBUNAL HAS PASSED A WELL-R EASONED AND SPEAKING ORDER AND THERE IS NO MISTAKE WHICH IS APP ARENT FROM RECORD. ACCORDINGLY, THE PRESENT MISC. APPLICATION DESERVE TO BE REJECTED. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE ORDER OF THE TRIBUNAL AS WELL AS PENALTY ORDER SO PASSED BY THE AO. WE FIND THAT IN THE PENALTY ORDER, THE AO AT PARA 3 HAS GIV EN A CLEAR FINDING THAT THE ASSESSEE IS FOUND GUILTY OF FURNISHING INA CCURATE PARTICULARS OF INCOME TO THE EXTENT OF RS 17.80 LACS. THEREFOR E, THERE IS A CLEAR AND SPECIFIC FINDING BY THE AO WHILE PASSING THE PE NALTY AND WE THUS SEE NO MISTAKE IN THE FINDINGS OF THE TRIBUNAL IN T ERMS OF INCORRECT APPRECIATION OF FACTS ON RECORD. REGARDING SUO-MOT O FILING OF REVISED COMPUTATION, THE MATTER HAS BEEN DULY DEALT WITH BY THE TRIBUNAL AND RELEVANT FINDINGS GIVEN AT PARA 11 OF ITS ORDER AND WE SEE NO BASIS TO INTERFERE WITH THE SAME AS IT WOULD TANTAM OUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE WITHIN THE NARROW COMPASS OF SECTION 254(2) OF THE ACT. M.A. NO. 15/JP/2019 SH. HARISH KUMAR VASWANI, JAIPUR VS. I TO, CIRCLE-2, JAIPUR 5 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED IN LIGHT OF ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 21/02/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/02/2020. * GANESH KR/S. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. HARISH KUMAR VASWANI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, CIRCLE-02, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 15/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR