PARASRAM C ROHIRA, MUMBAI v. ASST CIT CEN CIR 24 & 26, MUMBAI

ITA 4246/MUM/2013 | 2009-2010
Pronouncement Date: 27-04-2015 | Result: Allowed

Appeal Details

RSA Number 424619914 RSA 2013
Assessee PAN AAAPR9401L
Bench Mumbai
Appeal Number ITA 4246/MUM/2013
Duration Of Justice 1 year(s) 10 month(s) 30 day(s)
Appellant PARASRAM C ROHIRA, MUMBAI
Respondent ASST CIT CEN CIR 24 & 26, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 27-04-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 27-04-2015
Date Of Final Hearing 24-03-2015
Next Hearing Date 24-03-2015
Assessment Year 2009-2010
Appeal Filed On 28-05-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI . . . . BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI B.R.BASKARAN ACCOUNTANT MEMBER . / ITA NO. 4246/MUM/2013 / ASSESSMENT YEAR 2009-10 PARASRAM C. ROHIRA 911 1 ST FLOOR MATKA GALLY KALBADEVI ROAD VITHALWADI MUMBAI 400002 / VS. THE ACIT CEN.CIR.24&26 ROOM NO.435 4 TH FLOOR AAYKAR BHAVAN MK ROAD MUMBAI 400 020 ./ ./ PAN/GIR NO. : AAAPR9401L ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY NONE RESPONDENT BY : SHRI PREMANAND J. # $ % / DATE OF HEARING : 27/04/2015 # $ % / DATE OF PRONOUNCEMENT : 27/04/2015 / O R D E R PER I.P.BANSAL JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-39 MUMBAI DATED 11/3/2013 FO R ASSESSMENT YEAR 2009- 10. GROUNDS OF APPEAL READ AS UNDER: THE APPELLANT INDIVIDUAL IS AGGRIEVED BY THE ORDER PASSED BY LD. CIT(A)- 39 MUMBAI AND IS IN APPEAL BECAUSE: 1. BECAUSE THE LD. CIT(A) HAS ERRED IN UPHOLDING L EVY OF PENALTY U/S.271(1 )(C) ON ADDITION ARISING DUE TO APPLICATION OF DEEMING P ROVISIONS OF SECTION 50C. . / ITA NO. 4246/MUM/2013 / ASSESSMENT YEAR 2009-10 2 2. BECAUSE THE LD. CIT(A) HAS ERRED IN UPHOLDING T HAT THE APPELLANT HAD FURNISHED INACCURATE PARTICULARS OF INCOME IGNORING THE FACT THAT SECTION 50C IS A DEEMING PROVISION AND THE PROPERTY WAS SOLD UNDER D ISTRESS. 3. BECAUSE THE LD. CIT(A) HAS ERRED IN UPHOLDING T HE LEVY OF PENALTY EVEN THOUGH THE TAX SOUGHT TO BE EVADED IN THIS CASE IS NIL. 4. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN IGNORING THE JUDGMENT PASSED BY THE JURISDICTIONAL ITAT SQUARELY COVERING THE ISSUE THUS LEADING TO JUDICIAL INDISCIPLINE. 5. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN VIOLATING THE PRINCIPLES OF NATURAL JUSTICE BY FAILING TO DEAL WI TH THE WRITTEN SUBMISSION PLACED ON RECORD. 2. A PENALTY OF RS.1 93 280/- WAS IMPOSED UPON THE ASSESSEE ON THE INCOME COMPUTED UNDER THE HEAD LONG TERM CAPITAL GA IN AT RS.8 78 940/- AS AGAINST LOSS CLAIMED BY THE ASSESSEE AT RS.10 46 28 9/-. THE SALE PRICE SHOWN BY THE ASSESSEE OF IMMOVABLE PROPERTY WAS NOT ACCEP TED BY THE AO DUE TO APPLICATION OF SECTION 50C OF THE INCOME TAX ACT 1 961(THE ACT) VIDE WHICH VALUE AS PER STAMP VALUATION AUTHORITY WAS ADOPTED AND ACCORDINGLY ADDITION WAS MADE ON WHICH IMPUGNED PENALTY HAS BEEN LEVIED. 3. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE ON TH E DATE OF HEARING. AS THE APPEAL IS SMALL WE PROCEED TO DECIDE THE SAME O N MERITS AFTER HEARING BOTH THE PARTIES. IN THE FILE TWO TRIBUNAL ORDERS ARE FILED IN WHICH ON THE ISSUE OF ADDITION UNDER SECTION 50C OF THE ACT PENALTIES HAV E BEEN DELETED. REFERENCE CAN BE MADE TO THE FOLLOWING TWO ORDERS: 1. RENU HINGORANI VS. ACIT ITA NO.2210/MUM/2010 A.Y. 2006-07 ORDER DATED 22/12/2010 2. SHRI JAGDISH DASWANI VS. ITO ITA NO.4181/MUM /2011 A.Y. 2005-06 ORDER DATED 28/09/2012. 3.1 IN THE CASE OF RENU HINGORANI PENALTY HAS BEE N DELETED BY THE TRIBUNAL AS PER FOLLOWING OBSERVATIONS. . / ITA NO. 4246/MUM/2013 / ASSESSMENT YEAR 2009-10 3 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND REL EVANT RECORD . WE FIND THAT THE AO HAD MADE ADDITION OF RS.9 00 824/- BEING DIF FERENCE BETWEEN THE SALE CONSIDERATION AS PER SALE AGREEMENT AND THE VALUATI ON MADE BY THE STAMP VALUATION AUTHORITY. THUS THE ADDITION HAS BEEN MA DE BY THE AO BY APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT. IT IS EVIDEN T FROM THE ASSESSMENT ORDER THAT THE AO HAS NOT QUESTIONED THE ACTUAL CONSIDERATION RECEIVED BY THE ASSESSEE BUT THE ADDITION IS MADE PURELY ON THE BASIS OF DEEMING PROVISIONS OF THE INCOME TAX ACT 1961. THE AO HAS NOT GIVEN ANY FINDING THAT TH E ACTUAL SALE CONSIDERATION IS MORE THAN THE SALE CONSIDERATION ADMITTED AND MENTI ONED IN THE SALE AGREEMENT. THUS IT DOES NOT AMOUNT TO CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. IT IS ALSO NOT THE CASE OF T HE REVENUE THAT THE ASSESSEE HAS FAILED TO FURNISH THE RELEVANT RECORD AS CALLED BY THE AO TO DISCLOSE THE PRIMARY FACTS. THE ASSESSEE HAS FURNISHED ALL THE RELEVANT FACTS DOCUMENTS/MATERIAL INCLUDING THE SALE AGREEMENT AND THE AO HAS NOT DOU BTED THE GENUINENESS AND VALIDITY OF THE DOCUMENTS PRODUCED BEFORE HIM AND T HE SALE CONSIDERATION RECEIVED BY THE ASSESSEE. UNDER THESE FACTS AND CIR CUMSTANCES IT CANNOT BE SAID THAT THE ASSESSEE HAS NOT FURNISHED CORRECT PARTICU LARS OF INCOME. MERELY BECAUSE THE ASSESSEE AGREED FOR ADDITION ON THE BASIS OF VA LUATION MADE BY THE STAMP VALUATION AUTHORITY WOULD NOT BE A CONCLUSIVE PROOF THAT THE SALE CONSIDERATION AS PER THIS AGREEMENT WAS INCORRECT AND WRONG. ACCORDI NGLY THE ADDITION BECAUSE OF THE DEEMING PROVISIONS DOES NOT IPSO FACTO ATTRACT THE PENALTY U/S 271 (1)(C). HENCE IN VIEW OF THE DECISION OF THE HON'BLE SUPREM E COURT IN THE CASE OF CIT VIS RELIANCE PETROPRODUCTS PVT.LTD (SUPRA) THE PENALTY LEVIED U/S 271 (1)( C) IS NOT SUSTAINABLE. THE SAME IS DELETED. 3.2 IN THE CASE OF SHRI JAGDISH DASWANI THE PENALT Y HAS BEEN DELETED FOLLOWING THE AFOREMENTIONED DECISION AND REFERENCE CAN BE MADE TO THE OBSERVATIONS OF TRIBUNAL IN PARA 5 & 6. WHICH READ AS UNDER: 5. IN THE INSTANT CASE ALSO THE ASSESSING OFFICER L EVIED THE PENALTY ON THE AMOUNT OF DIFFERENCE BETWEEN THE SALE CONSIDERATION SHOWN BY THE ASSESSEE AND THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY . THE FACTS OF THE PRESENT CASE ARE SIMILAR TO THE FACTS OF THE CASE OF RENU H INGORANI (SUPRA). RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF RENU HINGORANI (SUPRA) WE CANCEL THE PENALTY OF RS.86 930J- LEVIED BY THE ASS ESSING OFFICER AND CONFIRMED BY THE CIT(A). 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . 4. IN THIS VIEW OF THE SITUATION AFTER HEARING LD. DR WHO RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A) RESPECTFULLY FO LLOWING THE AFOREMENTIONED DECISIONS OF THE TRIBUNAL IN WHICH SIMILAR PENALTY HAS BEEN DELETED WE DELETE THE IMPUGNED PENALTY AND ALLOW THE APPEAL FILED BY THE ASSESSEE. . / ITA NO. 4246/MUM/2013 / ASSESSMENT YEAR 2009-10 4 5. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/04/2015 # + - 27/04/2015 # SD/- SD/- ( . . / B.R.BASKARAN ) . . /I.P.BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED 27/04/2015 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. /$ ( ) / THE CIT(A)- 4. /$ / CIT 5. 01 $23 % 23 / DR ITAT MUMBAI 6. 4 / GUARD FILE. / BY ORDER 0$ $ //TRUE COPY// / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI . . ./ VM SR. PS . / ITA NO. 4246/MUM/2013 / ASSESSMENT YEAR 2009-10 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 27/04/2015 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 27/04/2015 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER