Shri Pankaj Kacharabhai Patel, Ahmedabad V. The Income Tax Officer, Ward-3(3)(4), Ahmedabad

MA 206/AHD/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5689 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 18-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Keywords: Bonafide belief
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) M.A. NO: 206/AHD/2019 (IN ITA NO. 215/AHD/2017) (ASSESSMENT YEAR: 2012-13) SHRI PANKAJ K PATEL 104, YOGI FLATS, NR PANDIT NAGAR, VIBHAG-3, SATELLITE ROAD, AHMEDABAD-380015 V/S INCOME TAX OFFICER, WARD- 3(3) (4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AEHPP5818A APPELLANT BY : SHRI BIREN SHAH, AR RESPONDENT BY : SHRI DILEEP KUMAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 06 -12-201 9 DATE OF PRONOUNCEMENT : 19 -12-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED ON BE HALF OF THE ASSESSEE FOR RECALLING OR ORDER DATED 12.04.2019 AND MADE FOLLOW ING APPLICATION: MA NO. 206/A HD/2019 . A.Y. 2012-1 3 2 1. THE ORDER OF THE HON'BLE 'SMC' BENCH IF THE INC OME TAX APPELLATE TRIBUNAL, AHMEDABAD IN THE CASE OF ABOVE MENTIONED APPLICANT FOR THE ASST YEAR 2012-13 DATED 12.04.2019 WAS RECEIVED BY THE APPLICANT ON 2 4.05.2019. ON RECEIPT OF THE ORDER,IT WAS NOTICED THAT A MISTAKE APPARENT FROM R ECORD HAS CREPT INTO THA DISPOSAL OF ABOVE REFERRED ASSESSEE'S APPEAL. THE H ON'BLE BENCH OF I.T.A.T. DISPOSED THE ASSESSEE'S APPEAL ON PAGES 4 TO 6 STAR TING FROM PARA 9 TO 14 OF THE SAID ORDER. 2 THE GROUND OF APPEAL WAS AS FOLLOWS: 'IN LOW IN THEFACTSAND CIRCUMSTANCES OF THE CASEJD C IT (A) HAS ERRED IN CONFIRMING PENALTY U/-S 271 (1) (C) OFRS 1,49,7 QO/ -LEVIED BY IDAO,EVER IF ALL MATERIAL RECORDS HAVE BENN DISCLOSED OF SHORT T ERM CAPITAL GAIN ON SALE OF AGRICULTURAL PLOT.' 3. THE BASIC FACTS INVOLVED IN APPEAL WAS FOR PENAL TY LEVIED BY LD AO U/S 271(L)(C) AND CONFIRMED BY CIT(A), FOR THE REASON THAT ASSESS EE FAILED TO OFFER SHORT TERM CAPITAL GAIN OF RS 5,27,6707- WHILE FILING OF ORIGI NAL RETURN OF INCOME. THE SAID INCOME WAS OFFERED DURING THE COURSE OF ASSESSMENT PROCEEDING. 4. HOWEVER, DURING THE COURSE OF HEARING BEFORE THE HON'BLE BENCH, THE MAIN ARGUMENT OR REASON GIVEN FOR NON DISCLOSURE OF SHOR T TERM CAPITAL GAIN AT THE TIME OF FILING OF ORIGINAL RETURN OF INCOME WAS THA T, THE ASSESSEE WAS UNDER BONAFIDE BELIEF THAT, THE LAND SOLD WAS AN AGRICULT URE LAND AND AGRICULTURE LAND WERE OUT OF THE PURVIEW OF CAPITAL GAIN TAX AND NO TAX IS PAYABLE ON SALE OF AN AGRICULTURE LAND. IT WAS ALSO POINTED OUT THAT, THE ASSESSEE HAD TAKEN SUCH ARGUMENT BEFORE CIT(A), AT PAGE NO 3 IN PARA 2 OF T HE CIT(A) PENALTY ORDER DATED 9* MAY, 2016. FURTHER, DURING THE HEARING IT WAS AL SO POINTED OUT FROM THE PAPER BOOK FILED BEFORE THE HON'BLE BENCH, COPY OF SALE D EED AT PAGE NO 10, WHICH IS IN MA NO. 206/A HD/2019 . A.Y. 2012-1 3 3 VERNACULAR LANGUAGE AND AT PAGE NO 32 WHICH IS ENGL ISH TRANSLATION, IN WHICH IT IS CLEARLY MENTIONED THAT, THE LAND SOLD WAS AN AGRICU LTURE LAND. THEREAFTER, AHMEDABAD ITAT THIRD MEMBER DECISION IN THE CASE OF PIRUZ AREEZ KHAMBATTA V ACIT REPORTED IN (2015) 62 TAXMANN.COM 236 WAS ALSO REFERRED, WHICH IS DIRECT DECISION FOR NON LEVY OF PENALTY U/S 271(1)(C) WHEN THE BONAFIDE BELIEF IS PROVED BY THE ASSESSEE. 5. THE ABOVE REFERRED ARGUMENT AND JUDGEMENT WAS BR OUGHT TO THE NOTICE OF THE HON'BLE BENCH OF ITAT, DURING THE HEARING BUT IT SE EMS THAT INADVERTENTLY BY OVERSIGHT, THE HON'BLE BENCH WHILE DISPOSING THE AP PEAL MISSED OUT ON TAKING THE BASIC ARGUMENT OF THE LD AR. 6. IN VIEW OF THE ABOVE MENTIONED CIRCUMSTANCES THE BASIC ARGUMENT OF THE ASSESSEE UPON WHICH THE WHOLE APPEAL STANDS, WHICH HAS NOT BEEN CONSIDERED BY THE HONBLE ITAT IN ITS ORDER, IT BECOMES A MISTAKE APPARENT ON RECORD AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. S AURASHTRA KUTCH STOCK EXCHANGE LTD. 305 ITR 227. 7. IT IS THEREFORE, HUMBLY SUBMITTED THAT THE HONB LE BENCH OF ITAT MAY KINDLY CORRECT THIS MISTAKE APPARENT FROM RECORD BY RECALL ING THE APPEAL. 2. WE HAVE HEARD BOTH THE PARTIES AND GONE OUR EARLIER ORDER DATED 12.04.2019, LD. A.R. SUBMITTED THAT ON SIMILAR ISSUE A JUDGMENT OF ITAT, AHMEDABAD THIRD MEMBER DECISION IN THE CASE OF PIRUZ AREEZ KHAMBATT A VS. ACIT (2015) 62 TAXMANN.COM 236 WAS NOT CONSIDERED BY PASSING THE O RDER. 3. AT THE TIME OF HEARING OF MAIN APPEAL, THE ABOVE SA ID ORDER WAS NOT DISCUSSED BY THE ASSESSEE MERELY COPY OF THE ORDER WAS FILED. AFTER GOING THROUGH THIRD MA NO. 206/A HD/2019 . A.Y. 2012-1 3 4 MEMBER DECISION, WE FIND THAT THERE IS AN APPARENT ERROR IN OUR ORDER DATED 12.04.2019. THEREFORE, WE RECALL THE ORDER. 4. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSES SEE IS ALLOWED AND REGISTRY IS DIRECTED TO REFIX THE APPEAL AS PER LAW. ORDER PRONOUNCED IN OPEN COURT ON 19- 12- 2019 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 19/12/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD