The Dy. Commissioner of Income Tax, Pathankot V. Sh Raghunath Sahai Puri (Decd), Pathankot

MA 18/ASR/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5653 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-07-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 25-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN
• Keywords: Opportunity of being heard; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T. S. KAPOOR, ACCOUNTANT MEMB ER AND SH.N. K.CHOUDHRY, JUDICIAL MEMBER M. A. NO. 18/(ASR)/2017 (ARISING OUT OF I.T.A NO. 633(ASR)/2014) ASSESSMENT YEAR: 2007-08 PAN: AIFPP5367A [[ DY. C.I.T., CIRCLE-IV, PATHANKOT VS. SH. RAGHUNATH SAHAI PURI (DECD). THROUGH L/H SH. NARESH PURI, PURIAN MOHALLA, PATHANKOT. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. CHARAN DASS (D.R.) RESPONDENT BY: SH. J. S. BHASIN (ADV. ) DATE OF HEARING: 28.07.2017 DATE OF PRONOU NCEMENT: 31.07.2017 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY RE VENUE AGAINST THE ORDER OF THE HON'BLE TRIBUNAL DATED 13.06.2016 IN ITA NO. 633 (ASR)/2014. 2. THE LD. DR ARGUED THAT THE HON'BLE TRIBUNAL HAD DELETED THE WHOLE OF THE PENALTY IMPOSED U/S 271(1)(C), RELYING ON TH E ORDER OF BALWINDER SINGH DHILLON DECIDED BY CHANDIGARH BENCH WHEREAS I N THAT CASE THE ASSESSEE HAD DECLARED AMOUNT RECEIVED IN REVISED RE TURN OF INCOME. IT WAS SUBMITTED THAT IN THE PRESENT CASE, IN VIEW OF THE DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT APPEAL EFFECT WAS GIVEN AND PENALTY AMOUNT WAS REDUCED FROM RS.39,80,00/- TO RS.7,40,52 0/-. IT WAS SUBMITTED THAT ASSESSEE WAS BOUND TO DECLARE CAPITA L GAIN ON THE BASIS OF AMOUNT RECEIVED AS PER THE DECISION OF C. S. ATW AL AND OTHERS WHICH MA NO. 18 (ASR)/2017 ARISING OUT OF IT A NO. 633(ASR)/2014 ASST. YEAR:2007-08 2 THE ASSESSEE HAD NOT DONE AND, THEREFORE, THE PENAL TY FOR CONCEALMENT OF INCOME TO THAT EXTENT WAS LEVIABLE. 3. THE LD. AR, ON THE OTHER HAND, SUBMITTED THAT TH E ASSESSEE HAD ALREADY DIED AND THE ASSESSMENT HAS BEEN MADE ONLY ON ONE OF THE LEGAL HEIR AND LEGAL HEIR WAS NOT AWARE OF THE TRANSACTIO NS OF LAND. IT WAS SUBMITTED THAT DCIT, PATHANKOT, REQUIRED INFORMATIO N RELATING TO THE DECEASED U/S 133 AS PER LETTER DATED 24.12.2009 AND IN RESPONSE TO WHICH THE INCIDENT OF DEATH ON 22.10.2007 AND NON A VAILABILITY OF RELEVANT INFORMATION WAS CATEGORICALLY BROUGHT TO T HE NOTICE OF ASSESSING OFFICER AND COMPLETE NAME AND ADDRESSES OF THE LEGA L HEIRS WERE SUBMITTED AND DEPARTMENT WAS REQUESTED TO SUPPLY; T HE RELEVANT DETAILS SO THAT CORRECT RETURN COULD BE FILED BUT NO DETAIL S WERE MADE AVAILABLE AND, THEREFORE, THE RETURN WAS FILED UNDER PROTEST, WHEREIN INCOME OF RS.11,89,430/- WAS DECLARED. THE LD. AR, FURTHER SU BMITTED THAT SINCE THE HON'BLE HIGH COURT HAD DECIDED THE ISSUE IN QUA NTUM IN FAVOUR OF THE ASSESSEE AND THEREFORE, ALSO PENALTY WAS NOT LE VIABLE AND MOREOVER, IT WAS SUBMITTED THAT THE HON'BLE TRIBUNAL HAD DECIDED THE ISSUE OF PENALTY, RELYING ON THE DECISION OF CHANDIGARH BENC H IN THE CASE OF BALWINDER SINGH DHILLON AND IN THIS RESPECT, OUR AT TENTION WAS INVITED TO THE COPY OF THE TRIBUNAL ORDER. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IN THE PRES ENT CASE, THE ASSESSEE HAD NOT DECLARED CAPITAL GAIN IN THE RETURN OF INCO ME OR REVISED RETURN OF INCOME WHEREAS IN THE CASE OF BALWINDER SINGH DHILL ON IN ITA NO. MA NO. 18 (ASR)/2017 ARISING OUT OF IT A NO. 633(ASR)/2014 ASST. YEAR:2007-08 3 1140/2014 AS RELIED ON BY THE TRIBUNAL, THE ASSESSE E HAD FILED ANOTHER RETURN OF INCOME DISCLOSING ALL MATERIALS RELATING TO TRANSFER AND HAD DISCLOSED CAPITAL GAINS ON THE AMOUNT WHICH WAS ACT UALLY RECEIVED DURING THE YEAR UNDER CONSIDERATION. THE FINDINGS O F THE HON'BLE CHANDIGARH BENCH IN THE CASE OF BALWINDER SINGH DHI LLON HAS BEEN REPRODUCED AT PAGE 4 OF THE TRIBUNAL ORDER. THEREFO RE, FROM THE ABOVE, IT IS APPARENT THAT THE CASE LAWS RELIED ON BY THE HON 'BLE TRIBUNAL WHILE ALLOWING RELIEF TO THE ASSESSEE ARE DISTINGUISHABLE ON FACTS AS IN THAT CASE, THE ASSESSEE HAD FILED REVISED RETURN DECLARI NG THEREIN CAPITAL GAINS ON THE AMOUNT WHICH WAS RECEIVED BY THE ASSESSEE WH EREAS IN THE PRESENT CASE, THE PART PAYMENT RECEIVED BY ASSESSEE WAS NOT DISCLOSED IN THE RETURN OF INCOME. 5. WHILE DECIDING THE ISSUE IN FAVOUR OF ASSESSEE, THIS FACT WAS OVERLOOKED BY THE HON'BLE TRIBUNAL AND THEREFORE, T HERE IS AN APPARENT MISTAKE WHICH IS IN THE ORDER OF TRIBUNAL AND IN VI EW OF THE ABOVE, WE RECALL THE TRIBUNAL ORDER DATED 13.06.2016 AND DIRE CT THE REGISTRY TO FIX THE DATE OF HEARING OF THE APPEAL IN ITA NO. 633 (A SR)/2014 AFRESH, AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE PARTIES. 6. IN VIEW OF THE ABOVE, THE MISCELLANEOUS APPLICAT ION FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.07. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 31/07/2017 GP/SR./PS MA NO. 18 (ASR)/2017 ARISING OUT OF IT A NO. 633(ASR)/2014 ASST. YEAR:2007-08 4 COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER