ACIT,Cir-9, Pune, v. Dilip P.Sonigara,

ITA 266/PUN/2009 | 2003-2004
Pronouncement Date: 31-08-2010 | Result: Dismissed

Appeal Details

RSA Number 26624514 RSA 2009
Assessee PAN ACNPS6825M
Bench Pune
Appeal Number ITA 266/PUN/2009
Duration Of Justice 1 year(s) 6 month(s) 8 day(s)
Appellant ACIT,Cir-9, Pune,
Respondent Dilip P.Sonigara,
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 31-08-2010
Assessment Year 2003-2004
Appeal Filed On 20-02-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I.C. SUDHIR JM AND SHRI D. KARUNAKAR A RAO AM I.T.A. NO. 266/PN/2009: A.Y. 2003-04 ASSTT. CIT CIR. 9 PUNE APPELLANT VS. DILIP P. SONIGARA VISHAL ARCADE STATION ROAD CHINCHWADGAON PUNE-411 033. PAN ACNPS 6825 M RESPONDENT APPELLANT BY : SHRI G.S. GULATI RESPONDENT BY: SHRI SUNIL GANOO ORDER PER I.C. SUDHIR JM THE REVENUE HAS QUESTIONED FIRST APPELLATE ORDER O N THE GROUND THAT THE LEARNED CIT(A) HAS ERRED IN: (I) NOT TREATING THE REVISED RETURN AS NON EST AS THE S AME WAS BARRED BY TIME AS PER THE PROVISIONS OF SECTION 139(5) OF THE ACT; (II) HOLDING THAT THE ASSESSEE HAD DISCLOSED A TRUE AND CORRECT INCOME WHEN THE TIME BARRED REVISED RETURN HAS NO VALIDITY AS PER THE INCOME-TAX ACT 1961; (III) DELETING THE PENALTY OF RS. 12 95 747/- LEVIED U/S 271(1)(C) OF THE ACT. ITA NO.266/PN/2009 DILIP P. SONIGARA A.Y. 2003-04 2 2. WE HAVE HEARD AND CONSIDERED ARGUMENTS ADVANCED BY BOTH THE PARTIES IN VIEW OF THE ORDERS OF LOWER AUT HORITIES AND THE DECISIONS RELIED UPON. 3. THE RELEVANT FACTS ARE THAT IN ITS ORIGINAL RETU RN OF INCOME FILED ON 22-9-2003 THE ASSESSEE DECLARED INCOME OF RS.45 29 811/- CONSISTING LONG TERM CAPITAL GAIN ON SALES OF SHARES OF DATABASE FINANCE LTD. OF RS. 39 84 588/- . ON THIS GAIN TAX WAS PAID AT CONCESSIONAL RATE OF 10%. SUB SEQUENTLY REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 12-6- 2006 DECLARING TOTAL INCOME AT RS. 45 85 740/-. IN THIS REVISED RETURN OF INCOME TAX ON THE ENTIRE INCOME INCLUDING LONG TERM CAPITAL GAIN WAS PAID AT THE MAXIMUM MARG INAL RATE. VIDE LETTER DATED 17-7-2006 THE A.O RECEIVE D INFORMATION FROM INVESTIGATION WING OF THE INCOME-T AX DEPARTMENT THAT THE ASSESSEE HAD BOOKED NON-GENUINE CAPITAL GAIN FOR THE RELEVANT YEAR ON ACCOUNT OF SALE OF SH ARES OF DATABASE FINANCE LTD. THE A.O ACCORDINGLY ISSUED N OTICE U/S 148 ON 28-2-2007 IN RESPONSE TO WHICH THE ASSESSEE SUBMITTED THAT THE REVISED RETURN FILED ON 12-6-200 6 COULD BE TREATED AS RETURN FILED IN COMPLIANCE OF NOTICE U/S 148. THE ASSESSMENT U/S 143(3) READ WITH SECTION 147 WAS COM PLETED ON 30-11-2007 ASSESSING THE TOTAL INCOME OF THE ASS ESSEE AT RS. 46 26 150/-. THE A.O ALSO ORDERED FOR INITIATI ON OF PENALTY PROCEEDINGS U/S 271(1)(C). DURING THE PENALTY PROC EEDINGS ITA NO.266/PN/2009 DILIP P. SONIGARA A.Y. 2003-04 3 THE ASSESSEE TRIED TO EXPLAIN THAT PENALTY U/S 271( 1)(C) WAS NOT ATTRACTED IN THE CASE OF ASSESSEE AS THE ASSESSEE H AD FILED THE REVISED RETURN OF INCOME PRIOR TO ANY RECEIPT OF NO TICE FROM THE A.O. THE A.O DID NOT AGREE WITH SUCH EXPLANATION W ITH THIS OBSERVATION THAT REVISED RETURN WAS FILED BY THE AS SESSEE ONLY IN PURSUANCE OF INITIATION OF INQUIRY BY THE INVEST IGATION WING OF THE INCOME-TAX DEPARTMENT FOR ASCERTAINING THE GENUINENESS OF CLAIM OF LONG TERM CAPITAL GAIN FURN ISHED BY THE ASSESSEE ON SALE OF SHARES OF DATABASE FINANCE LTD. THE A.O THUS LEVIED PENALTY OF RS. 12 95 747/- BEING 150% O F THE TAX SOUGHT TO BE EVADED. THE LEARNED CIT(A) HAS HOWEVE R DELETED THE PENALTY. THE SAME HAS BEEN QUESTIONED BY THE R EVENUE BEFORE US. 4. THE LEARNED DR TRIED TO JUSTIFY THE PENALTY ORDE RS. HE SUBMITTED THAT THE RETURN WAS REVISED BY THE ASSESS EE WHEN IT IS REALIZED THAT ON SIMILAR OTHER CASES DEPARTMENT WAS MAKING INQUIRIES. IN ITS REVISED RETURN THE ASSESSEE CH ANGED THE HEAD OF INCOME FROM CAPITAL GAIN TO MARGINAL INCOME . UNDER THESE CIRCUMSTANCES IT CANNOT BE INFERRED THAT THE DECLARATION WAS MADE BY THE ASSESSEE VOLUNTARILY. THE LEARNED DR SUBMITTED FURTHER THAT REVISED RETURN WAS FILED BEY OND TIME AND HENCE IT IS NON EST. ITA NO.266/PN/2009 DILIP P. SONIGARA A.Y. 2003-04 4 5. WHILE REITERATING THE SUBMISSIONS MADE BEFORE TH E LOWER AUTHORITIES THE LEARNED AR ON THE OTHER HAND PLACE D RELIANCE ON THE FOLLOWING DECISIONS: (A) CIT VS. RAJIV GARG AND OTHERS (2009) 313 ITR 25 6 (P&H) (B) CIT VS. SURESHCHANDRA MITTAL (2000) 241 ITR 124 (MP) (C) CIT VS. SURESH CHANDRA MITTAL (2001) 251 ITR 9( SC) (D) ADDL. CIT VS. PREM CHAND GARG (2009) 119 ITD 97 (DEL) (TM) 6. THE LEARNED AR SUBMITTED THAT THE A.O HAS ACCEPT ED THE REVISED RETURN HENCE THE SAME CANNOT BE DISPUTED N OW BY THE DEPARTMENT THAT IT WAS BEYOND PRESCRIBED TIME LIMIT HENCE NON EST. IN THIS REGARD THE LEARNED AR PLAC ED RELIANCE ON THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF LAXMAN VS. CIT (1988) 174 ITR 465 (BOM). 7. HAVING GONE THROUGH THE ORDERS OF THE LOWER AUTH ORITIES WE FIND THAT CERTAIN IMPORTANT FACTS OF THE CASE HA VE NOT BEEN DISPUTED. THESE FACTS ARE THAT THE ASSESSEE HAD CO RRECTLY DISCUSSED HIS INCOME AND PAID TAXES DUE THEREON BEF ORE ISSUANCE OF NOTICE U/S 148 OF THE ACT BY THE ASSESS EE OR PRIOR TO THE DATE 17-7-2006 ON WHICH A LETTER WAS WRITTEN BY THE INVESTIGATION WING OF THE INCOME-TAX DEPARTMENT TO THE A.O. THAT THE ASSESSEE HAD BOOKED NON-GENUINE LONG TERM CAPITAL GAIN FOR THE RELEVANT YEAR ON ACCOUNT OF SALE OF SH ARES OF DATABASE FINANCE LTD. IN VIEW OF THESE ADMITTED MA TERIAL FACTS WE ARE OF THE OPINION THAT THERE IS NO REASO N TO INTERFERE WITH THE FINDING OF THE LEARNED CIT(A) WHILE DELETI NG THE PENALTY THAT THERE WAS NO CONCEALMENT OF PARTICULAR S OF ITA NO.266/PN/2009 DILIP P. SONIGARA A.Y. 2003-04 5 INCOME OR FURNISHING OF INACCURATE PARTICULARS THER EOF ON THE PART OF THE ASSESSEE TOWARDS THE ADDITION TO LEVY P ENALTY U/S 271(1)(C) THEREUPON. THIS MATERIAL FACT HAS ALSO N OT BEEN REBUTTED BY THE DEPARTMENT AS NOTED BY THE LEARNED CIT(A) THAT THE A.O HAS DROPPED PENALTY PROCEEDINGS INITIA TED U/S 271(1)(C) OF THE ACT FOR A.Y. 2004-05 ON SIMILAR FA CTS. THE FIRST APPELLATE ORDER IN QUESTION IS THUS UPHELD. THE GRO UNDS ARE ACCORDINGLY REJECTED. 8. CONSEQUENTLY THE APPEAL IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31 ST AUGUST 2010. SD/- SD/- (D. KARUNAKARA RAO) (I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED THE 31 ST AUGUST 2010 ANKAM COPY FORWARDED TO: (1) ASSESSEE (2) DEPARTMENT (3) CIT- (A) III PUNE (4) CIT IV PUNE (5) THE D.R. ITAT B BENCH PUNE TRUE COPY BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL PUNE BENCHES PUNE