Smt. Jayaben Thakorbhai Patel, Anand v. The ACIT.,Anand Circle,, Anand

ITA 1394/AHD/2013 | 2007-2008
Pronouncement Date: 30-09-2016 | Result: Dismissed

Appeal Details

RSA Number 139420514 RSA 2013
Assessee PAN ANLPP1096R
Bench Ahmedabad
Appeal Number ITA 1394/AHD/2013
Duration Of Justice 3 year(s) 4 month(s) 17 day(s)
Appellant Smt. Jayaben Thakorbhai Patel, Anand
Respondent The ACIT.,Anand Circle,, Anand
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 30-09-2016
Date Of Final Hearing 29-09-2016
Next Hearing Date 29-09-2016
Assessment Year 2007-2008
Appeal Filed On 13-05-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH AHMEDABAD BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER ./ ITA NO. 1394/AHD/2013 / ASSESSMENT YEAR : 2007-08 SMT. JAYABEN THAKORBHAI PATEL JALARAM COLONY AMUL DIARY ROAD ANAND-388001 PAN : ANLPP 1096 R VS ACIT ANAND CIRCLE ANAND / (APPELLANT) / (RESPONDENT) ASSESSEE BY : MS. ARTI N. SHAH AR REVENUE BY : MR. RAHUL KUMAR SR. DR / DATE OF HEARING : 29/09/2016 / DATE OF PRONOUNCEMENT: 30/09/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV BARODA DAT ED 19.03.2013 FOR AY 2007-08 CONFIRMING PENALTY OF RS.3 23 600/- IMPOSE D BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-TAX ACT 1961 ( HEREINAFTER REFERRED TO AS THE ACT). 2. BRIEF FACTS ARE ASSESSEE SOLD AGRICULTURAL LAN D AND DECLARED CAPITAL GAIN OF RS.15 37 337/- ALONGWITH A VALUATION REPORT . IN THE COMPUTATION OF CAPITAL GAINS ASSESSEE CLAIMED AN AMOUNT OF RS.9 2 8 093/- U/S 48 TOWARDS INDEXED COST OF IMPROVEMENT. AS PER VALUATION REPO RT THE VALUE OF THE PROPERTY WAS WORKED OUT AT RS.1 05 000/- AND THERE WAS NO MENTION OF ANY COST OF IMPROVEMENT. THE AO DISALLOWED THE ASSESSEE S CLAIM IN THIS BEHALF AND COMPUTED THE CAPITAL GAINS ACCORDINGLY. 3. AGGRIEVED THE ASSESSEE PREFERRED FIRST APPEAL W HICH WAS DISMISSED ON THIS ISSUE WHICH HAS BEEN ACCEPTED BY THE ASSESS EE. THE AO INITIATED PENALTY PROCEEDINGS AND CALLED FOR ASSESSEES EXPLA NATION. ASSESSEE REPLIED AS UNDER:- SMC-ITA NO. 1394/AHD/2013 JAYABEN THAKORBHAI PATEL VS. ACIT AY : 2007-08 2 A) THE AO MADE CERTAIN REMARKS AND OBSERVATION IN TH E ORDER AND REJECTED THE INDEXED COST OF IMPROVEMENT OF RS.928093/- WITH OUT CALLING FOR FURTHER DETAILS AND JUSTIFICATIONS. B) IT IS ESSENTIAL TO EXAMINE FACTS AND ENTIRE PROOF S AND EVIDENCES TO DECIDE WHETHER PARTICULARS AS SUPPLIED ARE INACCURATE SO A S TO BE EXIGIBLE FOR CONCEALMENT. C) WHERE THERE IS A FINDING THAT THE DETAILS SUPPLIE D BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FA LSE THERE IS NO QUESTION OF INVITING THE PENALTY U/S 271(1)(C). MERE MAKING OF C LAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FU RNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. D) MERE REJECTION OF EXPLANATION IS NOT SUFFICIENT A ND THAT REVENUE MUST GO FURTHER AND ESTABLISH THAT THERE HAS BEEN CONSCIOUS CONCEALMENT OF PARTICULARS. E) THE OCCURRENCE OF ACTUAL EXPENDITURE IN MY JOINT LAND IS NOT QUESTION WITHOUT WHICH THE PROPERTY COULD BE DISPOSED OF AT HANDSOME PRICE FETCHED ON SALE. 3.1 THE AO CONSIDERED THE FACTS AND CIRCUMSTANCES O F THE CASE AND FOUND THAT ASSESSEES EXPLANATION WAS NOT SATISFACTORY AN D CONFIRMED THE PENALTY BY FOLLOWING OBSERVATIONS:- 5. I HAVE CAREFULLY CONSIDERED THE SUBMISSION MAD E IN THIS REGARD AND THE SAME IS NOT FOUND TO BE SATISFACTORY ON ACCOUNT OF FOLLOWING REASONS:- I) AT THE TIME OF ASSESSMENT NO EVIDENCE IN RESPECT OF EXPENSES INCURRED ON IMPROVEMENT WAS FILED. NO ANY EVIDENCE BY WAY OF B ILLS ETC. OR DETAILS OF PARTIES TO WHOM THE PAYMENTS WERE MADE FOR LABOUR C HARGES EXCAVATORS CHARGES ETC. WAS FURNISHED OR MADE AVAILABLE OR PRO DUCED. II) THE VALUER IN ITS REPORT HAS NOT MENTIONED OR MADE ANY REPORT OR REMARK AS TO IMPROVEMENT OF LAND BEING CARRIED OUT BY THE ASSESSEE. III) THE CERTIFICATE DATED 06.01.2010 BY VILLAGE ADMINIST RATIVE OFFICER OF SHAMSABAD DOES NOT MENTION ANYTHING ABOUT IMPROVEME NT OF LAND BY REMOVING STONE ETC. FROM THE ASSESSEES LAND. SMC-ITA NO. 1394/AHD/2013 JAYABEN THAKORBHAI PATEL VS. ACIT AY : 2007-08 3 IV) THE CONFIRMATORY STATEMENT OF SHRI M.C. PATEL REGAR DING ASSESSEES SPENDING OF RS.2 LAKH OVER A PERIOD OF 7 YEARS HOLD S NO WEIGHT IN ABSENCE OF ANY DIRECT EVIDENE OF INCURRING OF EXPENSE TOWAR DS IMPROVEMENT OF LAND. V) THE LD. CIT(A) HAS UPHELD THE ADDITION MADE ON THIS POINT BY THE AO ON MERITS AFTER DULY CONSIDERING THE SUBMISSION. 3.2 FURTHER AGGRIEVED THE ASSESSEE PREFERRED APPEA L AGAINST PENALTY WHERE THE PENALTY WAS CONFIRMED BY THE LD. CIT(A) B Y FOLLOWING OBSERVATIONS:- 6. .THE PENALTY ORDER U/S 271(1)(C) OF THE IT ACT OF THE AO AS WELL AS THE ABOVE SUBMISSION OF THE APPELLANT HAVE BEEN CONSIDE RED. THE FIRST GROUND OF APPEAL OF THE APPELLANT IS THAT THE AO HAS FAILED AN D HAS GRAVELY ERRED IN LAW AND JUSTICE IN NOT FOLLOWING THE SUPREME COURT'S JU DGMENT AS EXPLAINED AND TREATED IT TO BE AN INACCURATE PARTICULAR AND IMPOS ED PENALTY OF RS.9 28 093/- . THE SECOND GROUND OF APPEAL OF THE F APPELLANT IS THAT THE AO HAS FAILED AND HAS GRAVELY ERRED IN LAW AND JUSTICE IN NOT APPRECI ATING THE FACTS AND RECORDS OF THE CASE AND HAVING NOT DISCHARGED THE ONUS OF P ROVING THE SAME TO BE INACCURATE AND IMPOSED PENALTY ON RS.9 28 093/-. WITH REGARD TO THESE TWO GROUNDS OF APPEAL OF THE APPELLANT IT IS MENTIONED THAT THE ABOVE INCOME OF IMPROVEMENT OF RS.9 28 093/- OF THE APPELLANT IS NO T SUPPORTED BY ANY EVIDENCES. THE AO HAS LEVIED THE PENALTY ON THE G ROUND THAT NO EVIDENCES IN RESPECT OF EXPENSES INCURRED ON IMPROVEMENT COUL D BE FILED BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDIN GS. AS PER THE AO AGAIN THE VALUER IN ITS REPORT HAS NOT MENTIONED O R HAS NOT MADE ANY REMARK IN RESPECT OF IMPROVEMENT OF LAND. AS PER T HE AO EVEN THE CERTIFICATE DATED 06/01/2010 BY THE VILLAGE ADMINI STRATIVE OFFICER OF SHAMSABAD DOES NOT MENTION ANYTHING ABOUT IMPROVEME NT OF LAND BY REMOVING STONE ETC. FROM THE APPELLANT'S LAND. AS P ER THE AO THE CONFIRMATORY STATEMENT OF SHRI M.C. PATEL REGARDING APPELLANT'S SPENDING OF RS. 2 LAKHS OVER A PERIOD OF 7 YEARS HOLD NO ANY WE IGHT IN ABSENCE OF ANY DIRECT EVIDENCE OF INCURRING OF EXPENSES TOWARDS IM PROVEMENT OF LAND. DURING THE COURSE OF APPELLATE PROCEEDINGS THE AR OF THE APPELLANT HAS FILED SUBMISSION DATED 15/3/2013 ON BEHALF OF THE APPELLA NT BUT IN SUCH SUBMISSION THE ABOVE FINDINGS OF THE AO HAVE NOT B EEN REBUTTED RATHER THE AR OF THE APPELLANT IN SUCH SUBMISSION DATED 15/03/2 013 HAS STATED THAT IT IS NOT POSSIBLE FOR THE APPELLANT TO PRODUCE DIRECT EV IDENCE REGARDING IMPROVEMENT OF THE LAND AFTER A PERIOD OF 30 YEARS. THE AR OF THE APPELLANT IN SUCH SUBMISSION DATED 15/03/2013 HAS STATED THAT THE DIRECT PROOF OF EXPENDITURE CANNOT BE PRODUCED AFTER A LONG PERIOD OF 30 YEARS FOR THE PURPOSE OF VERIFICATION. OBVIOUSLY AND ADMITTEDLY THE ABOVE CLAIM OF SMC-ITA NO. 1394/AHD/2013 JAYABEN THAKORBHAI PATEL VS. ACIT AY : 2007-08 4 EXPENSES OF RS. 9 28 093/- FOR IMPROVEMENT OF LAND IS WITHOUT ANY DOCUMENTARY EVIDENCE AND IN NO WAY SUCH CLAIM OF TH E APPELLANT CAN BE ACCEPTED. CONSIDERING ALL THESE FACTS I HOLD THAT THE AO HAS CORRECTLY LEVIED THE PENALTY OF RS.3 23 600/- U/S / 271(1)(C) OF THE I T ACT AND THEREFORE THE SAME IS CONFIRMED. 4. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. LD. COUNSEL FOR THE ASSESSEE REITERATED THE FACT S AND CONTENDS THAT IT IS NOT THE CASE OF THE AO THAT THE ASSESSEE DID NOT FI LE ANY EVIDENCE AS A CONFIRMATORY LETTER FROM SHRI M.C. PATEL REGARDING INCURRING OF EXPENDITURE ON BEHALF OF THE ASSESSEE OVER A PERIOD OF SEVEN YE ARS WAS FILED. MERELY BECAUSE THE ASSESSEE COULD NOT FILE ANY BILLS AND D ETAILS PENALTY CANNOT BE LEVIED. 5.1 THE CLAIM OF CAPITAL GAINS WAS FILED IN THE RET URN OF INCOME. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIAN CE PETROPRODUCTS PVT LTD [2010] 322 ITR 158 (SC) HAS HELD THAT IF ANY C LAIM IS MADE IN THE RETURN OF INCOME WHICH IS ALLOWED BY THE AO PENALTY U/S 2 71(1)(C) CANNOT BE IMPOSED FOR DISALLOWANCE OF ANY CLAIM. 6. LD. DR ON THE OTHER HAND VEHEMENTLY CONTENDS T HAT:- (I) IN THE VALUATION REPORT FILED BY THE ASSESSEE THERE IS NO MENTION OF ANY COST OF IMPROVEMENT AS CLAIMED BY THE ASSESS EE. THE VALUATION REPORT IS THE EVIDENCE FILED BY THE ASSES SEE BEING AN EXPERT OPINION GIVEN UNDER STATUTORY PROVISIONS. TH EREFORE BY ONLY REPLYING ON SHRI M.C. PATELS CONFIRMATION IS OPPOSING HER OWN STATUTORY EVIDENCE. (II) NO PERMISSION FOR BREAKING THE ROCKS AND REMOVAL TH EREOF HAS BEEN TAKEN FROM THE CONCERNED DEPARTMENT. (III) THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE O F RELIANCE PETROPRODUCTS PVT LTD (SUPRA) IS NOT APPLICABLE TO ASSESSEES CASE SMC-ITA NO. 1394/AHD/2013 JAYABEN THAKORBHAI PATEL VS. ACIT AY : 2007-08 5 INASMUCH AS THE ASSESSEE MAKES A CLAIM WHICH IS CON TRADICTORY TO ITS OWN EVIDENCE I.E. VALUATION REPORT. THE HONB LE SUPREME COURT JUDGMENT IS NOT APPLICABLE TO THE CASE WHERE THE ASSESSEE DELIBERATELY MAKES A BOGUS CLAIM. A MERE COVER-UP BY A CONFIRMATORY LETTER CANNOT CONVERT ASSESSEES DELIB ERATE ATTEMPT INTO A BONA FIDE CLAIM. (IV) THE ORDERS OF THE AUTHORITIES BELOW ARE RELIED UPON . 7. I HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. FOLLOWING FACTS CLEARLY EMERGE FROM THE RECORD:- A) ASSESSEES VALUATION REPORT ITSELF DOES NOT INDICA TE ANY FACT ABOUT INCURRING OF ANY COST OF IMPROVEMENT. THE VAL UATION REPORT IS GIVEN BY A REGISTERED VALUER WHICH IS RE LIED ON BY THE ASSESSEE. ASSESSEE CANNOT DISREGARD ITS OWN EVIDENC E BASED ON ONE SHRI M.C. PATEL VAGUE STATEMENT THAT OVER A PER IOD OF SEVEN YEARS HE HAS INCURRED EXPENDITURE AROUND RS. 2 LACS ON BEHALF OF THE ASSESSEE. THERE BEING NO YEAR-WISE BREAK-UP OR OBJECTIVITY IN THE STATEMENT THE SAME CANNOT BE RELIED ON AS AGAI NST THE STATUTORY VALUATION REPORT. B) THE ASSESSEES EXPLANATION IS BEREFT OF ANY EVIDENC E OR PLAUSIBILITY. THIS IS GROSSLY AGAINST THE SURROUND ING CIRCUMSTANCES HUMAN CONDUCT AND PREPONDERANCE OF POSSIBILITIES AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF SUMATI DAYAL 241 ITR 801 (SC). C) THE ASSESSEE FILED VALUATION REPORT ALONGWITH RETUR N OF INCOME AND ITS CLAIM OF COST OF IMPROVEMENT RUNS CONTRARY TO THE EVIDENCE OF VALUATION REPORT. IN VIEW OF THESE GLA RING SMC-ITA NO. 1394/AHD/2013 JAYABEN THAKORBHAI PATEL VS. ACIT AY : 2007-08 6 INCONSISTENCIES THE HONBLE SUPREME COURT JUDGMENT IN THE CASE OF RELIANCE PETROPRODUCTS PVT LTD (SUPRA) CANNOT BE APPLIED TO ASSESSEES CASE. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES I SEE N O INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW CONFIRMING THE PENA LTY WHICH ARE UPHELD. 8. IN THE RESULT ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 30 TH SEPTEMBER 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 30/09/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. / DR ITAT AHMEDABAD 6. / GUARD FILE . / BY ORDER TRUE COPY / ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD