PUNAM VISHURAJ MOTWANI,MUMBAI V. ITO-27)2)(5), MUMBAI

ITA 5977/MUM/2024

AI Insights

This case involves an appeal by Punam Vishnuraj Motwani against the order of the Ld. Commissioner of Income-tax (Appeals) - National Faceless Appeal Centre, Delhi, for the assessment year 2011-12. The appellant contested penalties levied under sections 271F of the Income Tax Act, arguing non-service of notices and non-obligation to file a return of income as her income was below the taxable limit and all capital gains were reinvested in another property. The main appeal concerning the levy of capital gains tax is still pending with the Ld. CIT(A). The tribunal decided to remit the case back to the Ld. CIT(A) to first resolve the main appeal before addressing the penalty issue.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 32012 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHESH PAMNANI
• Assessee Lawyers: VENUGOPA C. NAIR
• Keywords: Set aside; Capital Gains

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C” MUMBAI BEFORE Shri Rahul Chudhary (Judicial Member) & Shri Omkareshwar Chidara (Accountant Member) ITA No. 5977/MUM/2024 Assessment Year: 2011-12 Punam Vishnuraj Motwani B/202, Lodha Imperia, LBS Marg, Bhandup Mumbai - 400078. Vs. ITO 27(2)(5), ITO 27(2)(5), Tower No. 6 Vashi Railway Station Commercial Complex Vashi Navi Mumbai - 400703. PAN NO. ANZPM9140D Appellant Respondent Assessee by : Shri Venugopa C. Nair Revenue by : Shri Mahesh Pamnani, Sr. DR Date of Hearing : 02/01/2025 Date of pronouncement : 27/01/2025 ORDER PER OMKARESHWAR CHIDARA, AM This appeal by the assessee is directed against order dated 18/09/2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2011-12. 2. In the above captioned appeal, the appellant has filed an appeal for A.Y. 2011-12 with the following Grounds of Appeal : “1. The Learned CIT (A) erred in facts and circumstances and in law in confirming Penalty that AO had levied u/s 271F, by refusing to condone a delay which itself was non service of notices. 2. The Learned CIT (A) erred in facts and circumstances and in law in confirming Penalty that AO had levied u/s 271 was not statutorily obliged to file return of income. 3. The Learned CIT (A) erred in facts and circumstances and in law in confirming Penalty that AO had levied u/s 271F had not been served with any notice as the residence to which notices were served had been sold, precisely on receipt of information of which the assessment was framed. The Appellant craves l aforesaid grounds of Appeal as occasion may arise or demand. 3. The AR of appellant has submitted that the appellant is a senior citizen and she doesn’t know the intricacies of Income Tax Act. She has never fi with Income Tax portal. She sold an old immovable property and invested the entire sale consideration by acquiring another immovable property. there is no tax liabili income. It was submitted that the entire capital gains was invested in acquiring other property and hence capital gain tax is not leviable as the capital gain income is below taxable limit. Ld. AR of the appellant has also given a calculation sheet to show that the income of the appellant is below taxable limit and hence there is no need to file return of income. It was also pleaded that the main appeal relating to levy of capital gain tax is under appeal and same is pending with Ld. CIT(A). Hence, it was requested that the penalty levied by the Ld. AO may be set aside. Alternatively, it was Punam Vishuraj Motwani ITA No. condone a delay which itself was non-existent, when computed from Learned CIT (A) erred in facts and circumstances and in law ing Penalty that AO had levied u/s 271F when the appellant was not statutorily obliged to file return of income. The Learned CIT (A) erred in facts and circumstances and in law ing Penalty that AO had levied u/s 271F when the appellant had not been served with any notice as the residence to which notices were served had been sold, precisely on receipt of information of which the assessment was framed. The Appellant craves leave to amend, alter, modify or omit any of the aforesaid grounds of Appeal as occasion may arise or demand. The AR of appellant has submitted that the appellant is a senior citizen and she doesn’t know the intricacies of Income Tax Act. She has never filed Return of Income nor she with Income Tax portal. She sold an old immovable property and invested the entire sale consideration by acquiring another immovable property. The claim of Ld. AR of the appellant is that there is no tax liability and hence there is no need to file return of income. It was submitted that the entire capital gains was invested in acquiring other property and hence capital gain tax is not leviable as the capital gain income is below taxable limit. Ld. AR of has also given a calculation sheet to show that the income of the appellant is below taxable limit and hence there is no need to file return of income. It was also pleaded that the main appeal relating to levy of capital gain tax is under appeal and same s pending with Ld. CIT(A). Hence, it was requested that the penalty levied by the Ld. AO may be set aside. Alternatively, it was Punam Vishuraj Motwani 2 ITA No. 5977/MUM/2024 existent, when computed from Learned CIT (A) erred in facts and circumstances and in law when the appellant The Learned CIT (A) erred in facts and circumstances and in law when the appellant had not been served with any notice as the residence to which notices were served had been sold, precisely on receipt of information of which eave to amend, alter, modify or omit any of the aforesaid grounds of Appeal as occasion may arise or demand.” The AR of appellant has submitted that the appellant is a senior citizen and she doesn’t know the intricacies of Income Tax led Return of Income nor she had registered with Income Tax portal. She sold an old immovable property and invested the entire sale consideration by acquiring another The claim of Ld. AR of the appellant is that ty and hence there is no need to file return of income. It was submitted that the entire capital gains was invested in acquiring other property and hence capital gain tax is not leviable as the capital gain income is below taxable limit. Ld. AR of has also given a calculation sheet to show that the income of the appellant is below taxable limit and hence there is no need to file return of income. It was also pleaded that the main appeal relating to levy of capital gain tax is under appeal and same s pending with Ld. CIT(A). Hence, it was requested that the penalty levied by the Ld. AO may be set aside. Alternatively, it was requested that one more opportunity may be given to her to substantiate her case before Ld. CIT(A). 4. Per contra, Ld. DR has authorities and submitted that the penalty levied by the Ld. AO should be sustained. 5. Rival submissions opportunity to the appellant for the following reasons : a) The appellant is a senior citizen and her bonafides filing the return of income was not by the Department were not received by her due to change of address. b) The main appeal which deals with Capital Gains is still pending with Ld. CIT(A) for adjudication and thu appeal may have some b sense, if it is held that these is no taxable income, then appellant would have better chance to substantiate her case. 6. Accordingly, the appellant Department for the disposal of main appeal and this penalty appeal. 7. As it is held that chance, the case is remitted to Ld. CIT(A) and the Ld. CIT(A) is directed to dispose of the main and then decide this penalty appeal. Punam Vishuraj Motwani ITA No. requested that one more opportunity may be given to her to substantiate her case before Ld. CIT(A). Per contra, Ld. DR has relied on the orders of the lower authorities and submitted that the penalty levied by the Ld. AO Rival submissions are heard and it is decided to give one more opportunity to the appellant for the following reasons : The appellant is a senior citizen and her bonafides filing the return of income was not doubt because by the Department were not received by her due to change of The main appeal which deals with Capital Gains is still with Ld. CIT(A) for adjudication and thu appeal may have some bearing on the main appeal in the sense, if it is held that these is no taxable income, then appellant would have better chance to substantiate her case. Accordingly, the appellant is directed to co the disposal of main appeal and this penalty appeal. s held that the appellant would be given one more chance, the case is remitted to Ld. CIT(A) and the Ld. CIT(A) is directed to dispose of the main appeal of leviability of Capital Gains and then decide this penalty appeal. Punam Vishuraj Motwani 3 ITA No. 5977/MUM/2024 requested that one more opportunity may be given to her to relied on the orders of the lower authorities and submitted that the penalty levied by the Ld. AO are heard and it is decided to give one more opportunity to the appellant for the following reasons :- The appellant is a senior citizen and her bonafides for not doubt because notices sent by the Department were not received by her due to change of The main appeal which deals with Capital Gains is still with Ld. CIT(A) for adjudication and thus penalty earing on the main appeal in the sense, if it is held that these is no taxable income, then appellant would have better chance to substantiate her case. to co-operate with the disposal of main appeal and this penalty appeal. appellant would be given one more chance, the case is remitted to Ld. CIT(A) and the Ld. CIT(A) is appeal of leviability of Capital Gains 8. The appeal of appellant is allowed for statistical purposes. Order pronounced in the open Court on Sd/- (RAHUL CHAUDHARY JUDICIAL MEMBER Mumbai; Dated: 27/01/2025 PS Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// Punam Vishuraj Motwani ITA No. The appeal of appellant is allowed for statistical purposes. Order pronounced in the open Court on 27/01 Sd/- RAHUL CHAUDHARY) (OMKARESHWAR CHIDARA JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Punam Vishuraj Motwani 4 ITA No. 5977/MUM/2024 The appeal of appellant is allowed for statistical purposes. /01/2025. OMKARESHWAR CHIDARA) ACCOUNTANT MEMBER BY ORDER, Registrar) ITAT, Mumbai "