ITO, BUNDI V. SHRI NAND LAL SHARMA, Kota

MA 36/JPR/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6477 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 17-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY
• Assessee Lawyers: B L BHOJWANI CA DHK
• Section: 54F

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M M.A. NO. 36/JP/2017 (ARISING OUT OF ITA NO. 413/JP/2012) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 INCOME TAX OFFICER, BUNDI CUKE VS. NAND LAL SHARMA, L/H- SHRI MAHAVIR PRASAD, GRAM: SUWASA, DISTRICT- BUNDI. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AEOPL 4406 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT M.A. NO. 15/JP/2017 (ARISING OUT OF ITA NO. 324/JP/2015) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 ITO, BUNDI CUKE VS. NAND LAL SHARMA, L/H- SHRI MAHAVIR PRASAD, GRAM: SUWASA, DISTRICT- BUNDI. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AEOPL 4406 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI B.L. BHOJWANI (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16/03/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 04/04/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. BOTH ARE THE MISC. APPLICATIONS FILED BY THE REVEN UE ON 15/03/2017 AND 17/01/2017 RESPECTIVELY FOR RECTIFIC ATION OF MISTAKE U/S MA 36 & 15/JP/2017_ ITO VS NAND LAL SHARMA 2 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) IN THE ORDER DATED 15/05/2015 IN ITA NO. 413/JP/2002 AND ORDER D ATED 26/09/2016 PASSED IN ITA NO. 324/JP/2015. 2. M.A. NO. 36/JP/2017 IN THIS MISC. APPLICATION, THE REVENUE HAS PRAYED AS UNDER: 1. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DENIAL OF EXEMPTION OF RS. 29.10 LACS BY THE A.O. U/S 54F OF THE IT ACT, 1961. THE HONBLE ITAT HAS ALLOWED THE ABOVE GROUND BY FOLLOWING THE ORDER OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS JAGRITI AGARWAL AND HELD: IF THE SALE CONSIDERATION IS UTILIZED FOR THE CONT RUCTION OR PURCHASE OF NEW RESIDENTIAL HOUSE BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(4), THE SAME WILL BE ELIGIBLE FOR EXEMPTION U/S 54F. IT IS WORTHWHILE TO MENTION HERE THAT WHILE PASSIN G ORDER, THE HONBLE TRIBUNAL HAS NOT CONSIDERED THE ORDER OF THE HON'BL E SUPREME COURT IN THE CASE OF PRAKASH NATH KHANNA AND OTHERS VS CIT (2004 ) 266 ITR 1 (SC), WHEREIN THE HONBLE APEX COURT HAS HELD THAT DUE DA TE MEANS, THE DUE DATE FOR FILING THE RETURN U/S 139(1) AND NOT 139(4) OF THE IT ACT, 1961. IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COU RT THE ORDER OF THE TRIBUNAL IS ERRONEOUS. IT IS REQUESTED TO YOURSELF THAT THE HONBLE TRIBUNAL KOCHI, FOLLOW THE ORDER OF THE HONBLE APEX COURT H AS DECIDED THE SAME ISSUE IN THE CASE OF ITO VS SMT. ROSAMMA KORAH, ITA NO. 6 46/COCH/2013. 3. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE. WE HAVE ALSO GONE THROUGH THE ORDER OF ITAT AGAINST WHICH THE M.A. HAS BEEN FILED. THE MA 36 & 15/JP/2017_ ITO VS NAND LAL SHARMA 3 BENCH FIND NO MERIT IN THE M.A. OF THE REVENUE. HEN CE, THE MISC. APPLICATION OF THE REVENUE STANDS DISMISSED. 5. M.A. 15/JP/2017 IN THIS MISC. APPLICATION, THE REVENUE HAS PRAYED A S UNDER: 1. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD CIT(A), KOTA HAS ERRED IN DELETING THE PENALTY OF RS. 14,11 ,620/- IMPOSED UPON THE ASSESSED U/S 271(1)(C) OF THE ACT MERELY O N THE GROUND THAT THE PENALTY PROCEEDINGS ABATE ON THE DEATH OF ASSES SED SINCE THERE IS NO SUCH PROVISION IN THE INCOME TAX ACT, 1961. THE HONBLE TRIBUNAL VIDE HIS ORDER, DISMISSED THE APPEAL FILED BY THE DEPARTMENT BY STATING THE FOLLOWING: WHEN THE COORDINATE BENCH HAD ALLOWED THE GROUNDS (SUPRA) IN QUANTUM APPEAL IN FAVOUR OF THE ASSESSEE VIDE ITS O RDER DATED 15/5/2015 THEN THERE IS NO NEED TO IMPOSE THE PENAL TY BY THE DEPARTMENT AGAINST THE ASSESSEE U/S 271(1)(C) OF TH E ACT. THAT, THE HONBLE TRIBUNAL WHILE PASSING ORDER HAS NO CONSIDERED, THAT THE DEPARTMENT HAS FILED A MISCELLANEOUS APPLICATIO N NO. 1352 DATED 27/11/2015 RECALLING YOU HONBLE ORDER DATED 15/5/2 015. HENCE, THE PRESENT ORDER OF THE HONBLE TRIBUNAL IN RESPECT OF PENALTY PROCEEDINGS IS CONSIDERED M.S. OF ABOVE APPLICATION. I, THEREFORE, FILING MISCELLANEOUS APPLICATION U/S 254(2) OF THE IT ACT, AGAINST ORDER PASSED BY YOURS HONOUR VIDE ITA NO. 324/JP/2015 DATED 26/09/2016 FOR A.Y. 2008-09 IN THE ABOVE MENTIONED CASE. MA 36 & 15/JP/2017_ ITO VS NAND LAL SHARMA 4 AFTER HEARING BOTH THE SIDES ON THIS ISSUE, WE FIND NO MERIT IN THE M.A. OF THE REVENUE. HENCE, THE MISC. APPLICATION O F THE REVENUE STANDS DISMISSED. 6. IN THE RESULT, BOTH THESE MISC. APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/04/2018. SD/- SD/- FOT; IKY JKO HKKXPAN (VIJAY PAL RAO) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04 TH APRIL, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, BUNDI. 2. IZR;FKHZ @ THE RESPONDENT- SHRI NAND LAL SHARMA, BUNDI. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (MA NO. 36 & 15/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR