Sh Ajendra Kumar Gupta, Agra v. ITO-1(1), Agra

1 ITA 464-07 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH : AGRA. ( BEFORE SHRI R.K. GUPTA AND SHRI P.K. BANSAL ) ITA NO. 464/AG./2007 ASSTT. YEAR : 2003-04. SHRI AJENDRA KUMAR GUPTA VS. THE INCOME-TAX OFFI CER AGRA. WARD 1(1) AGRA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. JAIN & SHRI VS JAIN ADVOCATES RESPONDENT BY : SHRI R.C. SHARMA JR. D/R ORDER PER R.K. GUPTA J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) UPHOLDING THE LEVY OF PENALTY OF RS. 2 44 163/- UNDER SECTION 271(1)(C ) OF THE ACT RELATING TO ASSESSMENT YEAR 2003-04. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FI LED HIS RETURN ORIGINALLY ON 28.11.2003 DECLARING AN INCOME OF RS. 1 74 823/-. T HE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 143(2) ON 10.11.2004 WHICH WAS RECEIV ED BY THE ASSESSEE ON 29.11.2004. VIDE LETTER DATED 29.12.2005 THE ASSESSEE INFORMED THE ASSESSING OFFICER THAT A REVISED RETURN HAD BEEN FILED BY ASSESSEE ON 25.11.2004 IN THE OFFICE OF ACIT AGRA. IN THE REVISED RETURN UNDER THE HEAD INCOME FROM OTHER SOU RCES THE ASSESSEE HAD SHOWN INCOME OF RS. 7 25 115/- WITH THE NARRATION CAPITAL GAIN C LAIMED EXEMPTED IN THE ORIGINAL RETURN 2 NOW TREATED AS INCOME. THEREAFTER THE ASSESSING OF FICER CALLED THE REVISED RETURN AND AFTER PERUSING THE REVISED RETURN IT WAS OBSERVED T HAT ASSESSEE HAD WITHDRAWN THE CLAIM OF LONG TERM CAPITAL GAIN AND HAS OFFERED FOR TAXATION . ACCORDINGLY THE ASSESSMENT WAS COMPLETED ON TOTAL INCOME OF RS. 8 99 940/-. THIS ORDER WAS PASSED BY THE ASSESSING OFFICER ON 30 TH MARCH 2006. PENALTY PROCEEDINGS WERE ALSO INITIA TED BY THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT. THEREAFTER P ENALTY NOTICE WAS ISSUED. ASSESSEE FILED EXPLANATION THAT NO PARTICULARS OF INCOME HAV E BEEN CONCEALED BY THE ASSESSEE. IT WAS EXPLAINED THAT CAPITAL GAIN CLAIMED EXEMPT IN T HE ORIGINAL RETURN NOW WAS WITHDRAWN BY FILING A REVISED RETURN. IT WAS FURTHER EXPLAINE D THAT REVISED RETURN WAS FILED EVEN BEFORE NOTICE UNDER SECTION 143(2) WHICH WAS RECEIV ED BY THE ASSESSEE ON 29.11.2004 WHEREAS THE REVISED RETURN WAS FILED ON 25.11.2004. HOWEVER THE ASSESSING OFFICER WAS NOT SATISFIED. IN HIS VIEW THE ASSESSEE HAS CLAIME D WRONG EXEMPTION WHILE FILING THE ORIGINAL RETURN. THEREFORE PARTICULARS OF INCOME R ELATING TO LONG TERM CAPITAL GAIN OF RS.7 25 115/- WERE CONCEALED. ACCORDINGLY HE LEVIE D PENALTY OF RS. 2 44 163/-. THE LD. CIT (A) CONFIRMED THE ACTION OF THE ASSESSING OFFIC ER. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 3. THE CONTENTION RAISED BEFORE THE LOWER AUTHORITI ES WERE REITERATED BY LD. A/R. ON THE OTHER HAND THE LD. D/R PLACED RELIANCE ON THE ORDER OF THE LD. CIT (A). PARA 2.4 AND 2.5 OF THE ORDER OF THE LD. CIT (A) WERE READ BY LD . D/R. 4. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD WE FIND THAT THE ASSESSEE DESERVES TO SUCCEED IN HIS APPEAL . THERE IS NO DISPUTE THAT ASSESSEE FILED ORIGINAL RETURN ON 28.11.2003 BY WHICH LONG TERM CA PITAL GAIN WAS CLAIMED AS EXEMPT. HOWEVER ON 25.11.2004 THE ASSESSEE FILED REVISED R ETURN WITHDRAWING THE CLAIM OF 3 EXEMPTION ON ACCOUNT OF LONG TERM CAPITAL GAIN. TH E REVISED RETURN WAS FILED DECLARING INCOME OF RS. 8 99 940/-. THE ASSESSING OFFICER HA S COMPLETED THE ASSESSMENT ON THE BASIS OF REVISED RETURN AT RS. 8 99 940/-. DURING T HE ASSESSMENT PROCEEDINGS THE CONTENTION OF THE ASSESSEE THAT HE HAS FILED A REVI SED RETURN WHICH WAS ACCEPTED. IT IS FURTHER SEEN THAT NOTICE UNDER SECTION 143(2) ISSUE D BY THE ASSESSING OFFICER WAS RECEIVED ON 29.11.2004. FROM THESE FACTS IT IS AMPL Y PROVED THAT ASSESSEE BONAFIDE HAS WITHDRAWN THE CLAIM OF EXEMPTION ON ACCOUNT OF LONG TERM CAPITAL GAIN. AS STATED ABOVE THE ASSESSMENT HAS ALSO BEEN COMPLETED ON THE BASIS OF REVISED RETURN. THEREFORE IT CANNOT BE SAID THAT ASSESSEE HAS CONCEALED ANY PART ICULARS OF INCOME. ACCORDINGLY WE HOLD THAT THIS IS NOT A CASE OF PENALTY. THEREFORE THE SAME IS CANCELLED. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. 6. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21. 04.2010 SD/- SD/- ( P.K. BANSAL ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AGRA DATED : 23/04/2010. D/- COPY FORWARDED TO :- THE APPELLANT THE RESPONDENT THE CIT THE CIT (A) CONCERNED. THE D/R ITAT AGRA. GUARD FILE (ITA 464/AG/2007) BY ORDER AR ITAT AGRA. 4