Smt. Amarjeet Kaur Saluja,W/o.Sh. Urvinder Singh Saluja,, Indore v. The ACIT., Indore

ITA 192/IND/2010 | 2006-2007
Pronouncement Date: 17-08-2010 | Result: Allowed

Appeal Details

RSA Number 19222714 RSA 2010
Assessee PAN ARXPS6171N
Bench Indore
Appeal Number ITA 192/IND/2010
Duration Of Justice 4 month(s) 3 day(s)
Appellant Smt. Amarjeet Kaur Saluja,W/o.Sh. Urvinder Singh Saluja,, Indore
Respondent The ACIT., Indore
Appeal Type Income Tax Appeal
Pronouncement Date 17-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 17-08-2010
Date Of Final Hearing 13-08-2010
Next Hearing Date 13-08-2010
Assessment Year 2006-2007
Appeal Filed On 13-04-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC-I BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER ITA NO.192/IND/2010 A.Y. 2006-07 AMARJEET KAUR SALUJA S/O SHRI GURBACHAN CHHABRA INDORE PAN ARXPS 6171 N APPELLANT VS ACIT-3(1) INDORE RESPONDENT APPELLANT BY : SHRI R.R. JAIN CA RESPONDENT BY : SMT. APARNA KARAN SR. DR O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I IND ORE DATED 18.1.2010 CHALLENGING THE CONFIRMATION OF PENALTY I MPOSED U/S 271(1) OF THE I.T. ACT. 2. DURING THE HEARING OF THIS APPEAL I HAVE HEARD SHRI R.R. JAIN LD. COUNSEL FOR THE ASSESSEE AND SMT. APARNA KARAN LD. SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE PENALTY U/S 271(1) 2 WAS IMPOSED ON THE DEEMED INCOME U/S 50C OF THE AC T WHICH WAS NEVER RECEIVED BY THE ASSESSEE AND THE ADOPTION OF VALUE U/S 50C OF THE ACT IS NOT THE CONCLUSIVE EVIDENCE OF VALUE OF PROP ERTY. IT WAS FURTHER POINTED OUT THAT THE ENHANCED VALUATION WAS MERELY ADOPTED FOR STAMP DUTY PURPOSES BY THE OFFICE OF THE REGISTRAR AND NO THING WAS RECEIVED BY THE ASSESSEE OVER AND ABOVE THE AMOUNT MENTIONED IN THE SALE DEED. ON THE OTHER HAND THE LD. SR. DR STRONGLY CONTENDE D THAT SEC. 50C WAS BROUGHT ON THE STATUTE AS A SPECIAL PROVISION FOR T HE PURPOSES WHERE THE VALUE ADOPTED OR ASSESSED BY THE AUTHORITY FOR STAM P DUTY PURPOSES AND ALSO FOR THE PURPOSE OF SEC. 48 OF THE ACT. THE IMP OSITION OF PENALTY WAS ARGUED TO BE VALIDLY IMPOSED. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. R EPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RE CORD. BRIEF FACTS ARE THAT THE ASSESSEE SOLD AGRICULTURAL LAND AT RS.8 92 000/- AGAINST WHICH THE LD. ASSESSING OFFICER TOOK THE VALUE OF THE LAN D AT RS.11 LACS THE VALUE DETERMINED BY THE REGISTRAR U/S 50C OF THE AC T FOR THE PURPOSES OF STAMP DUTY CONSEQUENTLY THE DIFFERENCE OF RS.2 37 752/- WAS ADDED TO THE CAPITAL GAINS AS PER SEC. 50C OF THE ACT. THE A MOUNT OF RS.2 37 752/- WAS ADOPTED AS DEEMED INCOME BY THE R EVENUE AND IMPOSED A PENALTY OF RS.42 330/- U/S 271(1) OF THE ACT. ON APPEAL THE SAME WAS AFFIRMED BY THE LD. CIT(A) AND IS UNDER FU RTHER CHALLENGE BEFORE THIS TRIBUNAL. 3 4. NOW QUESTION ARISES WHETHER THE ASSESSEE CONCEA LED ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. ANOTHER QUESTION ARISES WHETHER PENALTY U/S 271(1) CAN BE IMPOSED O N THE DEEMED INCOME? UNDER THE LIGHT OF THE AFOREMENTIONED FACTS AS FAR AS CONCEALMENT OR FURNISHING INACCURATE PARTICULARS AR E CONCERNED ONE CLEAR FACT IS OOZING OUT THAT THE ASSESSEE DULY DEC LARED THE SALE CONSIDERATION OF RS.8 92 000/- IN ITS RETURN WHEREA S THE FIGURE OF RS.11 LACS WAS ADOPTED BY THE OFFICE OF THE REGISTRAR FOR STAMP DUTY PURPOSES. IF THIS ISSUE IS ANALYSED DIFFERENTLY SUPPOSE THE OFFICE OF THE REGISTRAR ADOPTS A VALUE LESS THAN THE VALUE OF THE SALE CONS IDERATION MENTIONED IN THE SALE DEED THEN WHETHER FOR CAPITAL GAIN PUR POSES THAT VALUE WILL BE ACCEPTED TO THE DEPARTMENT ESPECIALLY WHEN THE F ACE VALUE IS MORE. TO MY KNOWLEDGE PERHAPS NO ESPECIALLY WHEN THER E IS NO EVIDENCE TO PROVE THAT THE ASSESSEE RECEIVED ANY OTHER AMOUNT ( MORE OR LESS) AGAINST THE AMOUNT MENTIONED IN THE SALE DEED. DEPA RTMENT MAY ALSO TAKE A PLEA THAT SINCE THE RECIPIENT IS CLAIMING TH AT HE RECEIVED MORE AMOUNT THEN THAT VALUE SHOULD BE ADOPTED AND NOT WH ICH WAS ADOPTED FOR STAMP DUTY PURPOSES. SUPPOSE FOR STAMP DUTY PUR POSES IN PLACE OF RS.11 LACS IF THE AMOUNT IS ADOPTED RS.15 LACS BY THE OFFICE OF REGISTRAR WHERE IS THE PROOF THAT THE ASSESSEE REC EIVED THE AMOUNT EITHER 15 LACS OR RS.11 LACS AS ADOPTED IN THE PRES ENT APPEAL. THE LD. ASSESSING OFFICER HAS NEITHER BROUGHT ON RECORD ANY COMPARABLE CASE 4 ON RECORD ABOUT THE MARKET VALUE OF THE LAND OF THA T PARTICULAR AREA NOR HAS QUOTED ANY SALE INSTANCES THEREFORE IN MY VIE W IN THE ABSENCE OF SUCH EVIDENCE THE VALUATION FOR STAMP DUTY PURPOSE S MAY NOT BE THE SOLE BASIS FOR IMPOSING THE PENALTY U/S 271(1) OF THE ACT. THERE MAY BE A SITUATION WHERE IT MAY BE A GOOD CASE FOR QUANTUM APPEAL BUT MAY NOT BE SO FOR PENALTY PROCEEDINGS AS BOTH PROCEEDINGS A RE DISTINCT. FOR IMPOSING PENALTY U/S 271(1) OF THE ACT EITHER THE RE SHOULD BE CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULAR OF SUCH INCOME. IN FACT THERE IS NO EVIDENCE ON RECORD THA T THE ASSESSEE ACTUALLY RECEIVED MORE AMOUNT AGAINST THE DECLARED VALUE ON THE SALE DEED. PRESUMPTION CANNOT TAKE THE SHAPE OF EVIDENCE HOWEVER STRONG IT MAY BE. SEC. 50C OF THE ACT IS REPRODUCED HEREUNDER : 20 [ SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION I N CERTAIN CASES. 50C. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET BEING LAND OR BUILDING OR BOTH IS LESS THAN THE VALUE AD OPTED OR ASSESSED 20A [ OR ASSESSABLE ] BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO A S THE STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER THE VALUE SO ADOPTED OR ASSESSED 20A [ OR ASSESSABLE ] SHALL FOR THE PURPOSES OF SECTION 48 BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RE CEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (1) WHERE ( A ) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED 20A [ OR ASSESSABLE ] BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; ( B ) THE VALUE SO ADOPTED OR ASSESSED 20A [ OR ASSESSABLE ] BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO 5 REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY COURT OR THE HIGH COURT THE ASSESSING OFFICER MAY REFER TH E VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFICER AND WHE RE ANY SUCH REFERENCE IS MADE THE PROVISIONS OF SUB-SECTIONS ( 2) (3) (4) (5) AND (6) OF SECTION 16A CLAUSE ( I ) OF SUB-SECTION (1) AND SUB-SECTIONS (6) AND (7) OF SECTION 23A SUB-SECTI ON (5) OF SECTION 24 SECTION 34AA SECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT 1957 (27 OF 1957) SHALL WITH NECESSARY MODIFICATIONS APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFERENCE MADE BY THE A SSESSING OFFICER UNDER SUB-SECTION (1) OF SECTION 16A OF THA T ACT. 20B [ EXPLANATION 1 ] . FOR THE PURPOSES OF THIS SECTION VALUATION OFFICER SHALL HAVE THE SAME MEANING AS IN CLAUSE ( R ) OF SECTION 2 OF THE WEALTH-TAX ACT 1957 (27 OF 1 957). 20C [ EXPLANATION 2. FOR THE PURPOSES OF THIS SECTION THE EXPRESSION ASSESSABLE MEANS THE PRICE WHICH THE S TAMP VALUATION AUTHORITY WOULD HAVE NOTWITHSTANDING ANY THING TO THE CONTRARY CONTAINED IN ANY OTHER LAW FOR THE TIM E BEING IN FORCE ADOPTED OR ASSESSED IF IT WERE REFERRED TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF STAMP DUTY. ] (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECT ION (2) WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) E XCEEDS THE VALUE ADOPTED OR ASSESSED 20C [ OR ASSESSABLE ] BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB-SECTION (1) THE VALUE SO ADOPTED OR ASSESSED 20C [ OR ASSESSABLE ] BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATION REC EIVED OR ACCRUING AS A RESULT OF THE TRANSFER.] IF THE FACTS OF THE PRESENT APPEAL ARE ANALYSED WIT H THE PROVISIONS OF SEC.50C(2)(B) THEN THE ASSESSING OFFICER MAY REFER FOR VALUATION OF CAPITAL ASSET TO A VALUATION OFFICER. AS PER SUB-SE CTION (3) TO SEC. 50C OF THE ACT IF PURSUANT TO SUB-SEC. (2) THE VALUATION SO ASCERTAINED UNDER SUB-SEC. (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB-S EC. (1) THEN THAT VALUATION SHALL BE CONSIDERED AS FULL VALUE OF THE CONSIDERATION. HOWEVER IN THE PRESENT APPEAL NO SUCH REFERENCE W AS MADE BY THE ASSESSING OFFICER. IT IS PERTINENT TO MENTION HERE THAT FROM THE 6 ASSESSMENT STAGE ITSELF THE ASSESSEE HAS CHALLENGE D THE ENHANCED ADOPTED VALUE AND HAD BEEN CLAIMING THAT THE ASSESS EE MERELY RECEIVED THE SALE CONSIDERATION WHICH IS MENTIONED ON THE SA LE PAPERS. HOWEVER TO BUY PEACE WITH THE DEPARTMENT THE ASSESSEE PAID THE DIFFERENCE OF THE AMOUNT MENTIONED ON THE SALE DEED AND ADOPTED B Y THE OFFICE OF THE REGISTRAR. IT IS PERTINENT TO MENTION HERE THAT EVE N IN THE PENALTY ORDER DATED 20.3.2009 ALL THESE FACTS ARE MENTIONED AND THE ASSESSEE HAS SPECIFICALLY CLAIMED THAT SHE HAS NOT RECEIVED ANY AMOUNT OVER AND ABOVE THE AMOUNT OF RS.8 92 000/- AND PAID THE TAX AS PER THE PROVISIONS OF THE SEC. 50C OF THE ACT. IN VIEW OF T HESE FACTS IT CAN BE SAID THAT NEITHER THERE IS ANY CONCEALMENT OF INCOM E NOR FURNISHING INACCURATE PARTICULARS. 5. AS FAR AS THE NEXT QUESTION WHETHER PENALTY CAN BE IMPOSED ON THE DEEMED INCOME IS CONCERNED I AM OF THE OPINION THAT NO PENALTY MAY BE IMPOSED ON THE ADOPTED FIGURE OR DEEMED INCO ME ESPECIALLY WHEN THERE IS NO CONCEALMENT AS SUCH. IF THE LANGUA GE USED IN SEC. 271(1) OF THE ACT IS ANALYSED UNDER THE FACTS OF T HIS APPEAL NEITHER THERE IS ANY CONCEALMENT NOR FURNISHING OF INACCURA TE PARTICULARS. THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN CIT VS . RELIANCE PETRO PVT. LTD. (2010) 230 CTR (SC) 320 SUPPORTS MY VIEW BECAU SE IN ORDER TO EXPOSE THE ASSESSEE TO THE PENALTY U/S 271(1) UNL ESS THE CASE IS STRICTLY COVERED BY THE PROVISIONS THE PENALTY PRO VISIONS CANNOT BE 7 INVOKED. THE HONBLE APEX COURT WHILE COMING TO A P ARTICULAR CONCLUSION DULY CONSIDERED THE OFF QUOTED DECISION IN DILIP N. SHROFF VS. JCIT [210 CTR (SC) 228] UNION OF INDIA VS. DHARMENDRA TEXTIL ES PROCESSORS [212 CTR (SC) 432] AND UNION OF INDIA VS. RAJASTHAN WEAV ING & SPINNING MILLS (2009) 224 CTR (SC) 1;23 DTR (SC) 158; (2009) 13 SCC 448. EVEN OTHERWISE PENALTY CANNOT BE IMPOSED WHEN INCO ME HAS BEEN ESTIMATED AS WAS HELD BY THE HONBLE P & H HIGH COU RT IN HARIGOPAL SINGH VS. CIT (258 ITR 85). THE DECISIONS IN CIT VS . SHRIKRISHNA SHROFF (2009) 227 CTR (MAD) 576 AND ITO VS. RANI KHURANA [ 114 TTJ (DEL) 561] SUPPORT THE CASE OF THE ASSESSEE. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SKYLINE AUTO PRODUCTS P. LTD. (271 ITR 335) (MP) EVEN WENT TO THE EXTENT THAT WHEN MISTAKE IS B ONAFIDE NO PENALTY CAN BE IMPOSED U/S 271(1). THE RATIO LAID DOWN BY THE INDORE BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. M/S MAA VAISHN O EDUCATION SOCIETY (ITA NOS. 437 AND 438/IND/07 A.YS. 2003-04 & 2004-0 5 ORDER DATED 27.11.2009) FURTHER SUPPORTS THE CASE OF THE ASSESS EE. EVEN OTHERWISE QUANTUM AND PENALTY PROCEEDINGS ARE ALTOGETHER DIFF ERENT BECAUSE FOR IMPOSING PENALTY U/S 271(1) A DEFINITE FINDING AB OUT CONCEALMENT IS NECESSARY AS WAS HELD BY HONBLE MADRAS HIGH COURT IN CIT VS. KR CHINNI KRISHNA CHETTI (2000) 246 ITR 121 (MAD). UND ER THE PROVISIONS A DISCRETION IS GIVEN TO THE AUTHORITY TO IMPOSE OR N OT TO IMPOSE THE PENALTY BUT THE DISCRETION HAS TO BE USED JUDICIOUSLY. BEFO RE ANY PENALTY IS 8 IMPOSED THE ENTIRETY OF CIRCUMSTANCES MUST REASONA BLY POINT TO THE CONCLUSION THAT THE DISPUTED AMOUNT WAS DELIBERATEL Y CONCEALED BY THE ASSESSEE. THE LD. ASSESSING OFFICER IS EXPECTED TO SPELL OUT ITS SATISFACTION OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS IN THE ASSESSMENT ORDER. IN THE ABSENCE OF CLEAR FINDING THE INITIATION OF PENALTY PROCEEDINGS WOULD BE WITHOUT JURISDICTION. MY VIEW GETS FURTHER SUPPORT FROM THE FULL BENCH DECISION F ROM HONBLE DELHI HIGH COURT IN CIT VS. RAMPUR ENGINEERING CO. LTD. (2009) 309 ITR 143 (DEL) (FB). IN VIEW OF THESE FACTS AND JUDICIAL PRONOUNCE MENTS I AM OF THE CONSIDERED OPINION THAT NO PENALTY IS IMPOSABLE U/S 271(1) OF THE ACT CONSEQUENTLY THIS APPEAL OF THE ASSESSEE IS ALLOWE D. FINALLY THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH AUGUST 2010 (JOGINDER SINGH) JUDICIAL MEMBER 17 TH AUGUST 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR GU ARD FILE !VYAS!