Sri Suresh Chikkajala Ramakrishnappa , Bangalore v. The Deputy Commissioner of Income Tax Circle-6(1)(2), Bangalore

ITA 156/BANG/2019 | 2013-2014
Pronouncement Date: 29-11-2019 | Result: Allowed

Appeal Details

RSA Number 15621114 RSA 2019
Assessee PAN BADPS0728K
Bench Bangalore
Appeal Number ITA 156/BANG/2019
Duration Of Justice 10 month(s) 1 day(s)
Appellant Sri Suresh Chikkajala Ramakrishnappa , Bangalore
Respondent The Deputy Commissioner of Income Tax Circle-6(1)(2), Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 29-11-2019
Last Hearing Date 25-11-2019
First Hearing Date 25-11-2019
Assessment Year 2013-2014
Appeal Filed On 28-01-2019
Judgment Text
ITA NO.156(B)/2019 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES : B BANGALORE BEFORE SHRI B.R.BASKARAN ACCOUNTANT MEMBER AND S MT. BEENA PILLAI JUDIC I AL MEMBER ITA NO. 1 56 (BANG)/201 9 (ASSESSMENT YEAR : 20 1 3 - 14 ) SHRI SURESH CHIKKAJALA RAMAKRISHNAPPA N O .81 STONE BUILDING CHIKKAJALA POST BANGALORE - 56 2 157 PAN NO. B A DPS0728K APPELLANT VS THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE - 6(1)(2) BANGALORE RESPONDENT APPELLANT BY : S HRI NARENDRA SHARMA A DVOCATE RE VENUE BY : SMT. P. RENUGADEVI J CIT DATE OF HEARING : 2 5 - 11 - 2019 DATE OF PRONOUNCEMENT : 29 - 11 - 2019 O R D E R PER SMT BEENA PILLAI JUDICIAL MEMBER : P RESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST ORDER DATED 09/11/18 PASSED BY LD. CIT (A) - 6 BANGALORE FOR ASSESSMENT YEAR 2013 - 14 ON FOLLOWING GROUNDS OF APPEAL: 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS LEVYING PENALTY U/S 271[1] [C] OF THE ACT AGAINST THE APPELLANT ARE OPPOSED TO LAW EQUITY WEIGHT OF ITA NO.156(B)/2019 2 EVIDENCE PROBABILITIES FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UP HOLDING THE PENALTY OF RS. 68 61 132/ - LEVIED U/S. 271[1][C] OF THE ACT IN RESPECT OF THE ADDITIONS MADE IN COURSE OF THE ASSESSMENT PROCEEDINGS THAT WERE ACCEPTED BY THE APPELLANT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 3. THE LEARNED CIT[A] OUGHT TO HAVE APPRECIATED THAT THERE WAS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS IN RESPECT OF THE ADDITION OF RS. 14 90 517/ - MADE ON ACCOUNT OF ESTIMATE OF THE BUSINESS INCOME AT 20% OF THE RECEIPTS AS AGAINST 18% ADMITTED BY THE APPELLANT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. THE LEARNED CIT[A] OUGHT TO HAVE APPRECIATED THAT THERE WAS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS IN RESPECT OF THE SHORT TERM CAPITAL GA INS DETERMINED ON THE SALE OF LANDS OF RS. 2 01 85 740/ - THAT WAS VOLUNTARILY BROUGHT TO THE NOTICE OF THE LEARNED A.O. IN COURSE OF THE ASSESSMENT PROCEEDINGS UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 5. THE LEARNED CIT[AL FAILED TO APPRECIATE THAT THE APPELLANT HAS NEITHER CONCEALED ANY INCOME NOR FURNISHED INACCURATE PARTICULARS OF INCOME IN RESPECT OF THE ABOVE ADDITIONS MADE TO WARRANT LEVY OF PENALTY AND THEREFORE THE PENALTY LEVIED U/S.271[1][C] OF THE ACT REQUIRES TO BE CANCEL LED. ITA NO.156(B)/2019 3 5. WITHOUT PREJUDICE TO THE ABOVE THE PENALTY LEVIED IS HIGHLY EXCESSIVE AND LIABLE TO BE REDUCED SUBSTANTIALLY. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE A LLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: A SSESSEE FILED ITS RETURN OF INCOME ON 01/05/1 4 DECLARING TOTAL INCOME OF RS.2 22 08 070/ - . SUBSEQUENTLY ON ISSUANCE OF STATUTORY NOTICES AND RESPONSE BY REPRESENTATIVE OF ASSESSE E ASSESSMENT UNDER SECTION 143 (3) WAS COMPLETED IS DETERMINING TOTAL INCOME AT RS.4 38 84 320/ - BY MAKING FOLLOWING ADDIT IONS: ADDITION OF RS.14 90 517/ - BY INCREASING THE NET PROFIT OR BUSINESS INCOME FROM SALE OF PLOTS FROM 18% TO 20%: ADDITION OF RS.2 01 85 740/ - UNDER THE HEAD SHORT TERM CAPITAL GAIN ON SALE OF IMMOVABLE PROPERTY: 2.1 AGAINST THESE ADDITIONS NO APPEAL W AS FILED BEFORE LD.CIT (A) AND ASSESSEE ACCEPTED THE SAME. HOWEVER RECTIFICATION APPLICATION DATED 2 3/03/16 IS WAS FILED BEFORE LD. AO ON WHICH ORDER UNDER SECTION 1 54 WAS PASSED IS DETERMINING TOTAL INCOME AT RS.3 71 97 731/ - . 2.2 LD. AO INITIATED PENALT Y PROCEEDINGS UNDER SECTION 271(1) (C ) WHILE PASSING THE ASSESSMENT ORDER. LD.AO INITIATED PENALTY PROCEEDINGS AGAINST ADDITION OF RS.2 01 85 740 / - UNDER THE HEAD SHORT TERM CAPITAL GAIN ON SALE OF IMMOVABLE PROPERTY. LD. AO PASSED PENALTY ORDER LEVYING BEING 100% PENALTY FOR CONCEALMENT OF INCOME. ITA NO.156(B)/2019 4 3. AGGRIEVED BY PENALTY ORDER ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) WHO CONFIRMED THE SAME. 4. AGGRIEVED BY ORDER PASSED BY LD. CIT (A) ASSESSEE IS IN APPEAL BEFORE US NOW. 4.1 AT THE OUTSET LD. AR SUBMITTED THAT ADDITIONAL GROUND I S RAISED O N LEGAL ISSUE OF CHALLENGING VALIDITY OF NOTICE UNDER SECTION 274 READ WITH 271 OF THE A CT 1961. HE SUBMI TTED THAT IN THE SAID NOTICE THERE IS NO STRIKING O F F IN APPROPRIATE LIMB OF PENALTY AND THEREFORE IS NOTICE IS NOT SPECIFIC. HE SUBMITTED THAT AS THIS GROUND EMANATES FROM RECORDS N O SEPARATE EVIDENCE/DOCUMENTS NEED S TO BE VERIFIED AND THE SAID GROUND DES ERVES TO BE ADMITTED. 5. LD.SR.DR THOUGH OBJECTED COULD NOT CONTROVERT THAT ADDITIONAL GROUND SO RACED FORMS PART OF ORIGINAL RECORD. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SIDES IN LIGHT OF RECORDS PLACED BEFORE US. 5.1 THE ISSUE RAISED BY ASSESSEE IN ADDITIONAL GROUND EMANATES FROM THE ASSESSMENT RECORD AND DO NOT REQUIRE ANY FRESH EVIDENCE TO ADJUDICATE UPON. WE THEREFORE RESPECTFULLY FOLLOWING DECISION OF HONBLE SUPREME COURT IN CASE OF NATIONAL THERMAL POWER COMPANY LTD REPORTED IN 229 ITR 383 AND HONBLE KARNATAKA HIGH COURT IN CASE OF GUNDATHUR THIMAPPA AND SONS REPORTED IN 70 ITR 70 WE ADMIT THE ADDITIONAL GROUND SO RA ISED . 6. WE HAVE ANALYSED THE ISSUE HAVING REGARDS TO GROUNDS OF APPEAL FILED AND ADDITIONAL GROUND RAISED WHICH HAS BEEN ADMITTED HEREINABOVE. 6.1 ON PERUSAL OF ASSESSMENT ORDER IT IS OBSERVED THAT LD. AO INIT IATED PENALTY UNDER SECTION 271(1) ( C) OF THE A CT WITHOUT SPECIFYING WHETHER THERE IS A CONCEALMENT OF INCOME OR FILING OF ITA NO.156(B)/2019 5 INACCURATE PARTICULARS. THUS PENALTY W AS INITIATED ON BOTH LIMBS. THE NOTICE INITIATING PENALTY PROCEEDINGS UNDER SECTION 274 READ WITH 271 IS ALSO ON BOTH THE LIMBS AS THERE IS NO STRIKE OFF OF EITHER OF LIMBS. WE NOTE THAT NOTICE ISSUED UNDER SECTION 274 READ WITH 271 IS IN CONSON ANCE WITH ASSESSMENT ORDER PASSED. 6.2 HOWEVER ORDER PA SSED BY LD.AO UNDER SECTION 271(1)(C ) IS FOR CONCEALMENT OF INCOME. THUS ON TOTALITY OF THESE INCIDENTS IT IS CLEAR THAT ASSESSING OFFICER INTENDED TO LEVY PENALTY FOR CONCEALMENT WHICH EITHER SPE CIFIED IN NOTICE N OR IN ASSESSMENT ORDER . WE A RE THEREFORE OF OPINION THAT ENTIRE PENALTY PROCEEDINGS IS WITHOUT APPLICATION OF MIND. THUS LD.AO IS NOT CLEAR AS ON WHAT LIMB PENALTY IS TO BE LEVIED WHILE PASSING PENALTY ORDER UNDER SECTION 271 (1) (C ) OF THE A CT. 6.3 THIS IN OUR OPINION LD.CIT (A) FAILED TO ANALYSE THESE FACTS AND THEREFORE DESERVES TO BE SET - ASIDE. WE THUS QUASH PENAL TY ORDER PASSED BY LD. AO . AS PENALTY ORDER PASSED HAS BEEN QUASHED THE GROUND RAISED STANDS ALLOWED. IN THE RESULT APPEAL FILED BY ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 - 11 - 2019 SD/ - SD/ - (B.R.BASKARAN) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 - 11 - 2019 *AM COPY OF THE ORDER FORWARDED TO: 1.APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5. DR 6. ITO (TDS) 7.GUAR D FILE BY ORDER ASST. REGISTRAR ITA NO. 1 5 6 (B)/201 9 6