The ITO, Ward-9(2),, Ahmedabad v. Shri Mantrabhai Revabhai Bharwad, Ahmedabad

ITA 2855/AHD/2011 | 2007-2008
Pronouncement Date: 30-03-2012 | Result: Dismissed

Appeal Details

RSA Number 285520514 RSA 2011
Assessee PAN AEEPB7842M
Bench Ahmedabad
Appeal Number ITA 2855/AHD/2011
Duration Of Justice 4 month(s) 12 day(s)
Appellant The ITO, Ward-9(2),, Ahmedabad
Respondent Shri Mantrabhai Revabhai Bharwad, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 30-03-2012
Assessment Year 2007-2008
Appeal Filed On 17-11-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI A.K.GARODIA ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER ITA NO.2855/AHD/2011 ASSESSMENT YEAR:2007-08 INCOME TAX OFFICER WARD-9(2) AHMEDABAD V/S . SHRI MATRBHAI REVABHAI BHARWAD 1 EARTH COMPLEX OPP. KANAK KALA VIBHAG-II ANANDNAGAR ROAD VEJALPUR AHMEDABAD-380051 PAN NO.AEEPB7842M (APPELLANT) .. (RESPONDENT) /BY APPELLANT SHRI A.TIRKEY SR-DR /BY RESPONDENT NONE /DATE OF HEARING 06-03-2012 /DATE OF PRONOUNCEMENT 30-03-2012 O R D E R PER KUL BHARAT JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF THE OR DER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV AHMEDABAD IN APPEAL NO.CIT (A)-X/ITO/9(2)/110/10-11 DATED 16-09-2011. 2. FACTS IN BRIEF ARE THAT THE ASSESSMENT WAS FRAME D BY THE ITO WARD-9(2) AHMEDABAD VIDE HIS ORDER DATED 17-12-2009 U/S 143(3 ) OF THE INCOME-TAX ACT 1961 FOR THE ASSESSMENT YEAR 2007-08. THE ASSESSING OFFI CER MADE THE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAINS AND ALSO INITIAT ED PENALTY U/S 271(1)(C) OF THE ACT FOR CONCEALING TRUE PARTICULARS OF INCOME. THE PENA LTY PROCEEDINGS WERE CONCLUDED VIDE ORDER DATED 29-06-2010 WHEREBY THE AO LEVIED PENALTY OF RS.6 26 290/-. ITA NO2855/AHD/2011 A.Y. 2007-08 ITO WD-9(2) ABD V. SH MATRABHAI R BHARWAD PAGE 2 3. THE ASSESSEE FEELING AGGRIEVED BY THIS ORDER OF ASSESSING OFFICER PASSED U/S. 271(1)(C) APPROACHED BEFORE LD. CIT(A) WHO AFTER C ONSIDERING THE SUBMISSIONS AND MATERIALS AVAILABLE ON THE RECORD DELETED THE PENA LTY. 4. NOW REVENUE FEELING AGGRIEVED BY THIS ORDER OF LD. CIT(A) PREFERRED APPEAL BEFORE US RAISING FOLLOWING GROUNDS:- 1) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.6 26 290/- LEVIED U/S. 271(1)(C) OF THE ACT. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV AHMEDABAD OUGHT TO HAVE UP HELD THE ORDER OF THE ASSESSING OFFICER. 5. NONE APPEARED ON BEHALF OF ASSESSEE DESPITE THE FACT THAT NOTICE OF HEARING WAS SENT THROUGH RPAD AND THE ACKNOWLEDGEMENT DUE I S RECEIVED BACK. IT IS THEREFORE PRESUMED THAT THE NOTICE OF HEARING IS DU LY SERVED UPON THE ASSESSEE. 6. WE HAVE HEARD THE LD. SR-DEPARTMENTAL REPRESENTA TIVE AND PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. DR VEHEMENTLY AR GUED THAT ORDER PASSED BY LD. CIT(A) IS ERRONEOUS AND SAME DESERVES TO BE REVERSE D AND THE ORDER PASSED BY ASSESSING OFFICER LEVYING THE PENALTY IS JUSTIFIED AND MAY BE CONFIRMED. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIALS AVAILABL E ON RECORD AND LD. CIT(A) AFTER CONSIDERING THE MATERIAL ON RECORD AND MORE PARTICU LARLY THE WRITTEN SUBMISSION DATED 13-09-2011 FILED BY ASSESSEE CAME TO THE CONC LUSION THAT THE PENALTY U/S 271(1)(C) IS IN HER VIEW WAS NOT LEVIABLE. IT WOUL D BE APPROPRIATE TO REPRODUCE THE WRITTEN SUBMISSION MADE BY ASSESSEE BEFORE LD. CIT( A) FOR THE SAKE OF CLARITY AS UNDER:- 5. THROUGH WRITTEN SUBMISSION DATED 13.9.2011 IT W AS STATED AS UNDER:- IN CONTINUATION OF MY SUBMISSION GIVEN DURING THE C OURSE OF EARLIER HEARING I HAVE FURTHER TO SUBMIT THAT I HAVE FILED THE RETURN /DOCUMENTS DURING THE COURSE OF HEARING AS UNDER:- RETURN FILED ON RECEIPT NO. INCOME DECLARED TAX PAID REASONS FOR FILING REVISED RETURN 10/3/2008 24303955 NIL NIL N.A. EXHIBIT-A 26/2/2009 24303206 652280 150540 L.T.GAIN FROM AGRI . LAND REMAINED TO BE SHOWN IN THE ORIGINAL RETURN FILED. MISTAKE IN ITA NO2855/AHD/2011 A.Y. 2007-08 ITO WD-9(2) ABD V. SH MATRABHAI R BHARWAD PAGE 3 PREPARING THE ORIGINAL RETURN FILED. EXHIBIT-B RE-REVISED STT. FILED ON 11-12- 2009 DURING THE COURSE OF HEARING. 2790923 717080 VALUED BY GOVT. VALUATION AUTHORITY AT RS.2790923/- YOUR APPELLANT IS PRODUCING HEREWITH THE ZEROX COPY OF THE ORDER SHEET WHEREIN THE LEARNED INCOME-TAX OFFICER HAS NOT WRIT TEN REGARDING INITIATION OF PENALTY PROCEEDINGS. THE LEARNED INCOME-TAX OFFICER HAD WRITTEN IN ORDER SHEET ENTRY DATED 15/12/2009 AS UNDER:- SHRI R.L. VAGASIA ADVOCATE AR OF THE A ATTENDED. PRODUCED BOOKS OF A/C. ETC. WHICH WERE VERIFIED ON TEST CHECK BASIS & HE HAS ASKED TO SHOW CAUSE AS TO WHY THE SALE CONSIDERATION OF IMMOVABLE PROPE RTY SHOULD NOT TAKEN AT RS.88 17 053/- INSTEAD OF RS.55 35 812/- SHOWN BY Y OU IN VIEW OF SECTION 50C OF THE I.T. ACT. THE A.R FILED HIS SUBMISSION AND R EVISED INCOME STATEMENT & CASE DISCUSSED ACCORDINGLY 17/12/09 ORDER PASSED U/S. 143(3). IN ORDER SHEET ENTRY DATED 17/12/09 WHEREIN THE ASS TT. PROCEEDINGS WERE CLOSED WHEREIN THERE WAS NO MENTION OF INITIAT ION OF PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE I.T. ACT 1961. HENCE PENALTY PROCEEDINGS STARTED ARE BAD IN LAW. FROM THE ORDER SHEET IT IS TRANSPIRED THAT; 1. THE LEARNED A.O HAD NOT QUESTIONED THE ACTUAL RE CEIVED BY THE ASSESSEE BUT THE ADDITION WAS PURELY ON THE BASIS OF DEEMING PROVISIONS OF SECTION 50C OF THE I.T. ACT. 2. THE LEARNED A.O HAD NOT GIVEN ANY FINDING THAT T HE ACTUAL SALE CONSIDERATION WAS MORE THAN THE SALE CONSIDERATION ADMITTED AND MENTIONED IN THE SALE AGREEMENT. 3. YOUR APPELLANT HAD FURNISHED ALL THE RELEVANT FA CTS DOCUMENTS/MATERIAL INCLUDING THE SALE AGREEMENT THE GENUINENESS AND V ALIDITY WHEREOF WAS NOT DOUBTED BY THE LEARNED A.O OBSERVED THAT THE AP PELLANTS AGREEMENT TO AN ADDITION ON THE BASIS OF VALUATION BY THE STA MP VALUATION AUTHORITY WOULD NOT BE CONCLUSIVE PROOF THAT THE SALE CONSIDE RATION AS PER THE AGREEMENT WAS INCORRECT AND WRONG. I FURTHER RELY OF FOLLOWING JUDGMENTS : 1. COMMISSIONER OF INCOME-TAX KAMAL VS. RAJIV GARD (P & H). IN THE INSTANT CASE IN PURSUANCE OF THE NOTICE U/S. 148 THE REVI SED RETURN OF INCOME WAS FILED IN WHICH THE ENTIRE INCOME WAS SURRENDERED WI TH AN EXPLANATION. THE REVISED ASSESSMENT WAS REGULARIZED BY THE REVENUE. THE ASSESSING AUTHORITY HAD FAILED TO TAKE ANY OBJECTION THAT THE DECLARATI ON OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETURN AND THE EXPLANATION WERE NOT BONAFIDE. THEREFORE THE IMPUGNED ORDER OF TRIBUNAL CANCELING THE PENALTY WAS JUSTIFIED AND DESERVES TO BE UPHELD. ITA NO2855/AHD/2011 A.Y. 2007-08 ITO WD-9(2) ABD V. SH MATRABHAI R BHARWAD PAGE 4 2. COMMISSIONER OF INCOME-TAX VS. S.V. ELECTRICALS (P) LTD. (2006) 155 TAXMAN P. 158 (MP). IN THE INSTANT CASE IT WAS HE LD THAT WHEN THE DISCLOSURE WAS TOTAL EVEN THOUGH AT A LATER STAGE THERE WAS N O QUESTION OF ANY CONCEALMENT AND THERE WAS NO PENALTY WAS IMPOSABLE UNDER SECTION 271(1)(C) OF THE I.T. ACT. 3. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE YOUR APPELLANT REQUEST YOUR HONOR TO DELETE THE PENALTY LEVIED U/S . 271(1)(C) OF RS.626290/- IT IS TRANSPIRED FROM THE RECORD THAT THE ASSESSEE FILED REVISED RETURN DECLARING THE LONG TERM CAPITAL GAIN OF RS.6 52 280/- AND YET AGA IN REVISED HIS RETURN AND DELETED LONG TERM CAPITAL GAIN IN TERMS OF SECTION 50COTA R E-COMPUTING IT TO RS.27 90 923/-. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE F ACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE FACT THAT ASSESSEE HAS FILE D REVISED RETURN EVEN BEFORE A QUERY WAS RAISED BY THE ASSESSING OFFICER. THEREFOR E WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE PENALTY LEVIED BY ASSESSING OFFICER. HENCE IMPUGNED ORDER PASSED BY LD. CIT(A) IS HEREBY CONFI RMED AND APPEAL FILED BY REVENUE IS DISMISSED. 7. IN THE RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD *DKP - 30/03/2012 '() * + + + + --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. )-1 + +2 / CONCERNED CIT 4. + +2- / CIT (A) 5. .56 ---1 + -1 '() / DR ITAT AHMEDABAD 6. 69: ;< / GUARD FILE. BY ORDER/ + /TRUE COPY/ =/ ' > + -1 '() *