The ITO, Ward-1,, Bharuch v. Purviben P.Shah, Bharuch

ITA 181/AHD/2008 | 2003-2004
Pronouncement Date: 20-08-2010 | Result: Dismissed

Appeal Details

RSA Number 18120514 RSA 2008
Assessee PAN AHXPS2987A
Bench Ahmedabad
Appeal Number ITA 181/AHD/2008
Duration Of Justice 2 year(s) 7 month(s) 8 day(s)
Appellant The ITO, Ward-1,, Bharuch
Respondent Purviben P.Shah, Bharuch
Appeal Type Income Tax Appeal
Pronouncement Date 20-08-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 20-08-2010
Date Of Final Hearing 16-08-2010
Next Hearing Date 16-08-2010
Assessment Year 2003-2004
Appeal Filed On 11-01-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH D DD D BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI N NN N. .. .S. SAINI S. SAINI S. SAINI S. SAINI ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER AND AND AND AND SHRI SHRI SHRI SHRI MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER DATE OF HEARING :16-8-2010 DRAFTED ON:1 6-8-2010 ITA NO. 179 /AHD/ 2008 ASSESSMENT YEAR :2003-04 THE INCOME TAX OFFICER WARD 1 BANK OF BARODA BLDG. STATION ROAD BHARUCH. VS. SMT. LILABEN S.SHAH 106 PRITAM SOCIETY NO.2 BHARUCH. PAN/GIR NO. : AHXPS 2987A (A PPELLANT ) .. ( RESPONDENT ) E OF HEARING :16-8-2010 DRAFTED ON:16-8-2010 ITA NO. 181 /AHD/ 2008 ASSESSMENT YEAR :2003-04 PAN NO.:AIHPS 2645G THE INCOME TAX OFFICER WARD 1 BANK OF BARODA BLDG. STATION ROAD BHARUCH. VS. SMT. PURVIBEN P.SHAH 106 PRITAM SOCIETY NO.2 BHARUCH. APPELLANT BY : SHRI R.K.DHANESTA D.R. RE SPONDENT BY: SHRI M.J. SHAH. O R D E R O R D E R O R D E R O R D E R PER BENCH:- THESE TWO APPEALS BY THE REVENUE IS AGAINST THE O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOR ASSESSMENT YEARS 2003-04 DELETING THE LEVY OF PENALTY UNDER SE CTION 271(1)(C) OF THE INCOME TAX ACT 1961. 2. SINCE IN BOTH THE APPEALS THE REVENUE HAS COMMO N DISPUTE THEREFORE THEY ARE BEING DISPOSED OF BY THIS CONSO LIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSEE HAS SHOWN THE RECEIPT OF RENT ON VA RIOUS PROPERTIES UNDER THE HEAD INCOME FROM HOUSE PROPER TY. THE - 2 - ASSESSING OFFICER HOWEVER NOTICED FROM THE BALANC E SHEET WHICH ACCORDING TO HIM WAS FILED AFTER THE ISSUE OF NOTI CE UNDER SECTION 142(1) OF THE INCOME TAX ACT 1961 (ACT) THAT THE PROPERTY AT CENTRAL POINT S.V. ROAD MUMBAI WAS NOT OWNED BY T HE ASSESSEE AS IT WAS NOT APPEARING IN THE BALANCE SHEET AND TH AT THE ASSESSEE WAS PAYING RENT IN THIS PROPERTY OF `.1 96 875/-. H E THEREFORE REQUIRED THE ASSESSEE TO EXPLAIN AS TO WHY THE RENT RECEIVED ON THIS PROPERTY SHOULD NOT BE CONSIDERED AS INCOME F ROM OTHER SOURCES. THE ASSESSEE RELYING UPON THE DEFINITIO N OF THE OWNERSHIP IN THE PROVISIONS UNDER SECTION 27(IIIA) R/W SECTION 269UA(F) OF THE ACT CLAIMED TO BE A DEEMED OWNER O F THE PROPERTY. RELIANCE WAS ALSO PLACED ON THE PROVISIONS OF SECTI ON 107 OF THE TRANSFER OF PROPERTY ACT 1882. THE ASSESSING OFFIC ER DID NOT AGREE WITH THE ASSESSEE AND HELD THAT HE WAS NOT THE OWNE R OF THE PROPERTY AND CONSEQUENTLY THE INCOME WAS ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES. 4. ON APPEAL THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) CONFIRMED THE ACTION OF THE LEARNED ASSES SING OFFICER 5. THEREAFTER THE LEARNED ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT OF `.1. 83 750/- BEING 200% OF THE TAX SOUGHT TO BE EVADED IN THE CASE PURVIBEN P. SHAH AND `.2 81 232/- IN THE CASE OF SMT. LILABEN H. SHAH FO R FURNISHING INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. 6. ON APPEAL LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) DELETED THE PENALTY BY OBSERVING AS UNDER:- I HAVE CAREFULLY GONE THROUGH THE CONTENTIONS OF T HE APPELLANT AND HAVE ALSO EXAMINED THE ASSESSMENT REC ORDS. IT IS SEEN FROM THE ASSESSMENT RECORD THAT ALONG WITH THE RETURN AND COMPUTATION OF INCOME THE COPY OF THE B ALANCE SHEET IN GUJARATI WAS FILED WHEREIN UNDER THE HEAD ASSETS THE LEASED PROPERTY WAS NOT DECLARED. HOWEVER IN T HE COMPUTATION THE RENTAL INCOME FROM THESE LEASE HOLD PROPERTIES WAS SHOWN UNDER THE HEAD INCOME FROM HOU SE PROPERTY. IT IS ALSO SEEN THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE COPY OF LEASE AGREEMENT WAS ALSO FI LED. IT IS - 3 - ALSO SEEN THAT THE LEASE AGREEMENT PROVIDES FOR SUB LEASE OF SAID PROPERTY. IN OTHER WORDS THE APPELLANT HAD ADO PTED ONE INTERPRETATION FOR OWNERSHIP OF PROPERTY REFERRING TO LEASE AND LICENSE AGREEMENT AND SECTION 27(IIIA) AND 27(I IIB) OF THE ACT READ WITH SECTION 269UA(F) TO CLAIM DEEMED OWNE RSHIP OF THE PROPERTY WHEREAS THE ASSESSING OFFICER AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAD HELD THAT THE CONDITIONS LAID DOWN UNDER TRANSFER OF PROPERTY ACT AND SECTION 269 UA(F) ARE NOT SATISFIED AND THEREFORE THE APPELLANT COULD NOT BE TREATED AS DEEMED OWNER OF T HE PROPERTY IN TERMS OF SECTION 27 AND ACCORDINGLY DED UCTION UNDER SECTION 24 WAS DISALLOWED. 7. BOTH THE P[ARTIES BEFORE US SUBMITTED THAT THE I SSUE IS COVERED IN FAVOUR OF THE ASSESSEE IN THE CASE OF OT HER GROUP ASSESSEES BY THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 31-3- 2008 PASSED IN ITA NOS.152 & 153/AHD/2008 IN THE CA SE OF SHRI PUNITKUMAR S. SHAH AND SMT. DAXABEN P. SHAH RESPECT IVELY IN THE ASSESSMENT YEAR 2003-04. FOLLOWING THE SAME THE AP PEAL OF THE REVENUE IN THE PRESENT APPEALS ALSO IS LIABLE TO BE DISMISSED. 8. WE FIND THAT THE TRIBUNAL WHILE DELETING THE LEV Y OF PENALTY UNDER SECTION 271(1)(C) VIDE ITS CONSOLIDATED ORDER DATED 31-3- 2008 HELD AS UNDER :- 5. WE HAVE HEARD THE PARTIES AND CONSIDERED THE RI VAL SUBMISSIONS. THE ASSESSEE HAD FURNISHED ALL THE MAT ERIAL FACTS BEFORE THE ASSESSING OFFICER. EVEN THE FACT T HAT THE BALANCE SHEET WHICH IS TREATED TO HAVE BEEN FILED P URSUANT TO NOTICE UNDER SECTION 142 OF THE ACT IT DOES NOT SE EM TO BE CORRECT BECAUSE IN THE ACKNOWLEDGEMENT SLIP THE CO PY OF BALANCE SHEET WAS FILED BY THE ASSESSEE ALONG WITH THE RETURN. THE ASSESSEE HAD MADE CLAIM BEFORE THE ASSE SSING OFFICER THAT BECAUSE OF CERTAIN PROVISIONS OF SECTI ON 269UA(F) SECTION 107 AND SECTION 27(IIIA) OF THE A CT HE WAS THE DEEMED OWNER AND CONSEQUENTLY THOUGH THAT THE PROPERTY WOULD BE CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. BE THAT AS IT MAY. SINCE ALL THE M ATERIALS HAVE BEEN DISCLOSED BY THE ASSESSEE BEFORE THE ASSE SSING OFFICER IT WOULD NOT BE A CASE OF CONCEALMENT OF I NCOME OR FURNISHING OF INACCURATE PARTICULARS THEREOF. THE B ONAFIDE BELIEF BY THE ASSESSEE THAT INCOME WAS CHARGEABLE U NDER THE HEAD INCOME FROM HOUSE PROPERTY AND THEREFORE I N THE FACTS AND CIRCUMSTANCES IT CANNOT BE SAID TO BE CO NCEALMENT OF INCOME. WE DO NOT FIND ANY INFIRMITY IN THE ORDE R OF THE - 4 - LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND HI S ORDER IS ACCORDINGLY UPHELD. 6. IN THE RESULT REVENUES APPEALS STAND DISMISSE D. 9. FACTS BEING IDENTICAL RESPECTFULLY FOLLOWING THE ABOVE QUOTED ORDER OF THE TRIBUNAL WE CONFIRM THE ORDER OF THE C ITA(A) AND DISMISS THE APPEALS OF THE REVENUE. 10. IN THE RESULT THE APPEAL OF THE ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 20 TH AUGUST 2010 SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNT ANT MEMBER AHMEDABAD: ON THIS 20 TH DAY OF AUGUST 2010 COMPILED AND COMPARED BY: PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS) 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 16-8-2010 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 16-8-2010 ----- -------------- 3. DRAFT PROPOSED & PLACED 16-8-2010 ------------ ------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 16-8-2010 ------------------- JM 5. APPROVED DRAFT COMES TO P.S 20-8-2010 --------- ----------- 6. KEPT FOR PRONOUNCEMENT ON 20-8-2010 --------- ----------- 7. FILE SENT TO THE BENCH CLERK 20-8-2010 ------- ------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ----------------