Shri Shailesh D. Patel,, Baroda v. The ACIT.,Circle-4,, Baroda

ITA 2870/AHD/2014 | 2008-2009
Pronouncement Date: 30-04-2015 | Result: Allowed

Appeal Details

RSA Number 287020514 RSA 2014
Assessee PAN ACQPP7076A
Bench Ahmedabad
Appeal Number ITA 2870/AHD/2014
Duration Of Justice 6 month(s) 1 day(s)
Appellant Shri Shailesh D. Patel,, Baroda
Respondent The ACIT.,Circle-4,, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 30-04-2015
Date Of Final Hearing 23-04-2015
Next Hearing Date 23-04-2015
Assessment Year 2008-2009
Appeal Filed On 29-10-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI SHAILENDRA KR. YADAV J.M. & SHRI ANIL CHATURVEDI A.M.) I.T. A. NO. 1021 /AHD/2012 & 2870/AHD/2014 (ASSESSMENT YEAR: 2008-09) SHRI SHAILESH D. PATEL PROP. OF SHARDA CONSTRUCTION 27 GIDC MAKARPURA VADODARA-390020 V/S ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-4 AAYAKAR BHAVAN RACE COURSE VADODARA-390007 (APPELLANT) (RESPONDENT) PAN: ACQPP7076 APPELLANT BY : SHRI MILIN MEHTA A.R. RESPONDENT BY : SMT. SONIA KUMAR SR. D.R. ( )/ ORDER DATE OF HEARING : 23-04-2015 DATE OF PRONOUNCEMENT : 30-04-2015 PER SHRI ANIL CHATURVEDI A.M. 1. THESE 2 APPEALS FILED BY THE ASSESSEE ONE AGAINST THE QUANTUM ADDITION AND THE OTHER AGAINST THE LEVY OF PENALTY ARE AGAINST THE ORDER OF CIT(A)-III BARODA DATED 22.02.2012 AND 19.08.2014 RESPECTIVELY FOR A.Y. 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL AND PROPRIETOR OF SHARADA CONSTRUCTION WHICH IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF RESIDENT IAL HOUSES AND SALE OF ITA NO1021/A /12 & 2870/A/2014 . A.Y. 2008-09 2 DEVELOPED LANDS. ASSESSEE FILED HIS RETURN OF INC OME FOR A.Y. 2008-09 ON 29.09.2008 DECLARING TOTAL INCOME OF RS. 75 69 290/ -. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAM ED UNDER SECTION 143(3) VIDE ORDER DATED 24.12.2010 AND THE TOTAL INCOME WA S DETERMINED AT RS. 1 95 86 678/-. AGGRIEVED BY THE ORDER OF A.O. ASS ESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 22.02.2012 D ISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF L D. CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWIN G GROUNDS;- 1.THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN CO NFIRMING THE ACTION OF AO IN TREATING AN AMOUNT OF RS. 1 12 46 198/- AS INCOME OF CURRENT YEAR. 1.1 THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN MAKING THE ADDITION BY REJECTING THE CONSISTENT METHOD OF ACCOUNTING FOLLOWED BY THE APPELLANT. 1.2 WITHOUT PREJUDICE TO ABOVE THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN NOT ALLOWING THE TAX CREDIT IN THE CURRENT YEAR ON THE AMOUNT ADDED DESPITE THE FACT THAT THE APPELLANT HA D ALREADY OFFERED TO TAX THE SAID INCOME IN AY 09-10. 1.3 WITHOUT PREJUDICE TO ABOVE THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN TAXING THE AMOUNT TWICE ONCE I N AY 08-09 AND ALSO IN AY 09-10. THE LEARNED ASSESSING OFFICER ERRED IN FACT AND IN LAW IN NOT PASSING A CONSEQUENTIAL ORDER FOR REDUCING THE INCOME FROM TOTAL INCOME OF AY 200 9-10. 2. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN C ONFIRMING THE ACTION OF AO IN DISALLOWING A SUM OF RS. 1 66 853/-U/S 14A OF THE A CT. 4. ON THE QUANTUM ADDITION MADE A.O LEVIED PENALTY OF RS. 40 07 700/- ON ACCOUNT OF CONCEALMENT OF INCOME U/S. 271(1)(C) OF THE ACT AND THE AFORESAID PENALTY WAS CONFIRMED BY LD. CIT(A) VIDE ORDER DATED 19.08.2014. AGGRIEVED BY THE ORDER OF PENALTY ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEAL) - III BARODA ['THE CIT(A)'] ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION O F THE ACIT CIRCLE-4 BARODA ('THE AO') IN LEVYING PENALTY AMOUNTING TO RS.40 07 700/- U/S. 271(L)(C) OF THE INCOME TAX ACT 1961 ('THE ACT'). ITA NO1021/A /12 & 2870/A/2014 . A.Y. 2008-09 3 5. SINCE BOTH THE APPEALS ARE INTERCONNECTED BOTH THE APPEALS ARE CONSIDERED TOGETHER. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS A.O NO TICED THAT ASSESSEE HAD SOLD A PIECE OF LAND SITUATED AT GOTRI FOR RS. 4 29 00 435/- AND THE SALE DEED FOR THE SAME WAS ALSO EXECUTED DURING THE YEAR. HE NOTICED THAT THE SALE CONSIDERATION OF LAND WAS CONSIDERED BY ASSESSEE IN 2 YEARS I.E. A.Y. 2008- 09 AND A.Y. 2009-10. HE NOTICED THAT FOR A.Y. 08-0 9 ASSESSEE HAS TAKEN INTO CONSIDERATION THE SALE OF LAND AT RS. 2 32 11 111/- AND RS. 1 96 89 324/- WAS CONSIDERED IN A.Y. 2009-10. A.O WAS OF THE VIE W SINCE ASSESSEE WAS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING THE ENTI RE SALES CONSIDERATION WHETHER RECEIVED IN FULL OR NOT WAS REQUIRED TO BE TAXED AS RECEIPTS OF THE YEAR UNDER CONSIDERATION. A.O WAS FURTHER OF THE VI EW THAT THE ASSESSEE SHOULD HAVE ACCOUNTED FOR THE INCOME AS PER AS-9 OF THE ACCOUNTING STANDARD ACCORDING TO WHICH IN A TRANSACTION INVOLV ING SALE OF GOODS PERFORMANCE SHOULD BE REGARDED AS HAVING BEEN ACHIE VED WHEN THE SELLER OF THE GOODS HAS TRANSFERRED TO THE BUYER THE PROPERTY FOR A PRICE AND ALL SIGNIFICANT RISKS AND REWARDS OF OWNERSHIP HAVE BEE N TRANSFERRED TO THE BUYER. HE WAS THEREFORE OF THE VIEW THAT THE PROFIT ON SALE OF LAND OF RS. 1 12 46 198/- WHICH WAS SHOWN BY THE ASSESSEE IN A. Y. 09-10 SHOULD HAVE BEEN OFFERED FOR TAX IN THE YEAR UNDER CONSIDERATIO N. HE ACCORDINGLY MADE AN ADDITION OF RS. 1 12 46 198/- THAT WAS SHOWN BY ASS ESSEE IN A.Y. 09-10 IN A.Y. 08-09 AND ON THE AFORESAID ADDITION PENALTY O F RS. 40 07 603/- ON ACCOUNT OF CONCEALMENT OF INCOME U/S. 271(1)(C) WAS ALSO LEVIED BY THE A.O. AGGRIEVED BY THE ORDER OF A.O ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO UPHELD THE ORDER OF A.O BOTH ON THE QUA NTUM AND PENALTY. ITA NO1021/A /12 & 2870/A/2014 . A.Y. 2008-09 4 7. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A) AS SESSEE IS NOW IN APPEAL BEFORE US. 8. BEFORE US AT THE OUTSET THE LD. A.R. SUBMITTED THA T A.O HAD CONSIDERED THE INCOME OF RS. 1 12 46 198/- AS INCOME FOR A.Y. 08-0 9 AND HAD TAXED IT IN A.Y. 08-09 WHEREAS THE ASSESSEE ON THE OTHER HAND H AD CONSIDERED THE AFORESAID INCOME FOR A.Y. 09-10. THE LD. A.R. THERE FORE SUBMITTED THAT BY TAXING THE INCOME WHICH WAS OFFERED BY THE ASSESSEE IN A.Y. 2009-10 ON THE SALE OF LAND IN A.Y. 08-09 HAS RESULTED INTO DO UBLE TAXATION OF THE SAME INCOME WHICH IS NOT PERMISSIBLE UNDER THE ACT. HE T HEREFORE SUBMITTED THAT THE ASSESSEE DOES NOT WANT TO CONTEST THE INCLUSION OF INCOME SHOWN BY HIM IN 09-10 IN A.Y. 08-09 BUT HOWEVER NECESSARY DIRECT IONS MAY BE GIVEN THAT THE SAME INCOME IS NOT AGAIN TAXED IN A.Y. 09-10 SO AS TO AVOID THE DOUBLE TAXATION. THE LD. A.R. ALSO SUBMITTED THAT ON THE A FORESAID ADDITION MADE A.O VIDE PENALTY ORDER DATED 28.03.2013 LEVIED PENA LTY U/S. 271(1)(C) FOR FURNISHING INACCURATE PARTICULARS OF INCOME. HE SU BMITTED THAT THE REVENUE DEPARTMENT HAS ACCEPTED THE SALES CONSIDERATION AND ALSO THE QUANTUM OF PROFITS AND IT WAS NOT A CASE FOR DETECTION OF UNDI SCLOSED INCOME BY THE DEPARTMENT. HE THEREFORE SUBMITTED THAT THE AFORESA ID ADDITION BEING TECHNICAL IN NATURE NO PENALTY U/S. 271(1)(C) IS C ALLED FOR. LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND LD. CIT(A ). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ASSESSEE HAD SOLD LAND FOR RS. 4 29 00 435/- AND THE PROFITS ARISING ON ITS SALE WAS CONSIDERED BY THE A SSESSEE IN A.Y. 08-09 (RS. 78 94 518/-) AND IN A.Y. 2009-10 (RS. 1 12 46 198/- ) AGGREGATING TO RS. 1 91 40 714/- BUT THE REVENUE DEPARTMENT HAS CONSID ERED THE INCOME ITA NO1021/A /12 & 2870/A/2014 . A.Y. 2008-09 5 OFFERED BY THE ASSESSEE IN A.Y. 2009-10 AS INCOME O F A.Y. 2008-09. IT IS THE SUBMISSION OF THE ASSESSEE THAT BY INCLUDING TH E INCOME OFFERED BY THE ASSESSEE IN A.Y. 09-10 OF RS. 1 12 46 198/- AS THE INCOME FOR A.Y. 08-09 HAS RESULTED INTO DOUBLE TAXATION OF THE SAME INCOM E BECAUSE THE SAME INCOME WAS OFFERED BY THE ASSESSEE IN A.Y. 09-10. W E FIND FORCE IN THE ARGUMENT OF THE ASSESSEE BUT AT THE SAME TIME IN TH E ABSENCE OF THE COMPLETE DETAILS OF THE ASSESSMENT ORDER FOR A.Y. 0 9-10 WE ARE OF THE VIEW THAT THE SUBMISSIONS MADE BY THE ASSESSEE ON THE AF ORESAID FACTUAL ASPECT NEEDS VERIFICATION AT THE END OF A.O. WE THEREFORE REMIT THE ISSUE TO THE FILE OF A.O TO DECIDE THE ISSUE AFRESH IN LIGHT OF THE S UBMISSIONS MADE BY THE ASSESSEE AND IN ACCORDANCE WITH LAW. NEEDLESS TO ST ATE THE A.O SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. TH E ASSESSEE IS ALSO DIRECTED TO CO-OPERATE BY FURNISHING ALL THE REQUIR ED DETAILS CALLED FOR BY THE A.O. IN THE RESULT THIS GROUND OF ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. 10. GROUND NO. 2 WITH RESPECT TO ADDITION U/S. 14A IS N OT PRESSED AND THEREFORE THE SAME IS DISMISSED AS NOT PRESSED. 11. THUS THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR S TATISTICAL PURPOSES. 12. AS FAR AS LEVY OF PENALTY U/S. 271(1)(C) WITH RESPE CT TO THE INCLUSION OF INCOME THAT WAS OFFERED BY THE ASSESSEE IN A.Y. 09- 10 AS INCOME IN A.Y. 08-09 IS CONCERNED WE FIND THAT IT IS NOT A CASE W HERE ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME OR HAS CONCEALED T HE PARTICULARS OF INCOME MORE SO WHEN THE DISPUTE IS IN THE YEAR IN WHICH T HE INCOME SHOULD HAVE BEEN CONSIDERED TO BE TAXABLE. IT IS ALSO A FACT TH AT THE QUANTUM OF INCOME AS DISCLOSED BY THE ASSESSEE HAS NOT BEEN ALTERED BY T HE A.O. AND FURTHER THE ITA NO1021/A /12 & 2870/A/2014 . A.Y. 2008-09 6 EXPLANATION OF THE ASSESSEE HAS ALSO NOT BEEN FOUND TO BE FALSE. FURTHER CONSIDERING THE FACT THAT PENALTY PROCEEDINGS AND Q UANTUM PROCEEDINGS ARE DISTINCT AND SEPARATE AND IN VIEW OF THE FACT THAT SUBMISSION OF THE ASSESSEE HAS NOT BEEN FOUND TO BE UNTRUE OR FALSE WE ARE OF THE VIEW THAT IN THE PRESENT CASE NO PENALTY U/S. 271(1)(C) IS CALLED FO R. WE THEREFORE DIRECT ITS DELETION. THUS THIS GROUND OF ASSESSEE IS ALLOWED. 13. IN THE RESULT THE APPEAL IN ITA NO. 1021/AHD/2012 OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND APPEAL IN ITA NO. 2870/AHD/2014 IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 30 - 04 - 2015. SD/- SD/- (SHAILENDRA KR. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHM EDABAD