Sri Bhomraj Saraogi, Kolkata v. ITO, Wd.34(1)), Kolkata, Kolkata

ITA 56/KOL/2014 | 2008-2009
Pronouncement Date: 31-07-2014 | Result: Allowed

Appeal Details

RSA Number 5623514 RSA 2014
Assessee PAN ALKPS3467L
Bench Kolkata
Appeal Number ITA 56/KOL/2014
Duration Of Justice 6 month(s) 18 day(s)
Appellant Sri Bhomraj Saraogi, Kolkata
Respondent ITO, Wd.34(1)), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 31-07-2014
Assessment Year 2008-2009
Appeal Filed On 13-01-2014
Judgment Text
I.T.A. NO. 56/KOL./2014 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH KOLKATA BEFORE SHRI P.K. BANSAL (ACCOUNTANT MEMBER) AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 56/KOL./ 2014 ASSESSMENT YEAR : 2008-2009 SRI BHOMRAJ SARAOGI ............................... ....................................APPELLANT C/O. D.J. SHAH & CO. KALYAN BHAVAN 2 ELGIN ROAD KOLKATA-700 020 [PAN : ALKPS 3467 L] -VS.- INCOME TAX OFFICER ................................ .................................RESPONDENT WARD-34(1) KOLKATA AAYAKAR BHAWAN POORVA 110 SHANTI PALLI KASBA KOLKATA-700 107 APPEARANCES BY: SHRI MIRAJ D. SHAH A.R. FOR THE ASSESSEE SHRI P.K. CHAKRABORTY JCIT SR. D.R. FOR THE DEPA RTMENT DATE OF CONCLUDING THE HEARING : JULY 31 2014 DATE OF PRONOUNCING THE ORDER : JULY 31 2014 O R D E R PER GEORGE MATHAN: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XX KOLKATA IN APPEAL NO.57/CIT(A)-XX/WD-34(1)/2011-12/KOL. DATED 29.10.2 013 IN RESPECT OF THE LEVY OF PENALTY UNDER SECTION 271(1)(C) FOR THE ASSESSMENT YEAR 2008- 09. 2. SHRI MIRAJ D. SHAH ADVOCATE REPRESENTED ON BEH ALF OF THE ASSESSEE AND SHRI P.K. CHAKRABORTY LD. JCIT SR. D.R. REPR ESENTED ON BEHALF OF THE REVENUE. I.T.A. NO. 56/KOL./2014 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 4 3. IT WAS SUBMITTED BY THE LD. A.R. THAT IN THE COU RSE OF ASSESSMENT THE ASSESSING OFFICER HAD BROUGHT TO TAX THE CAPITA L GAINS IN RESPECT OF THE SALE OF IMMOVABLE PROPERTY BEING LANDED PROPERTY NE AR BANGALORE SOLD FOR A CONSIDERATION OF RS.48 00 000/-. IT WAS THE S UBMISSION THAT THE ASSESSEE HAS SOLD HIS PROPERTY AND AS THE ASSESSEE WAS SUPPOSED TO GIVE VACANT POSSESSION AND THE ASSESSEE HAD NOT BEEN ABL E TO GIVE VACANT POSSESSION THE ASSESSEE HAD NOT OFFERED THE CAPITAL GAINS TAX FOR THE ASSESSMENT YEAR 2008-09. HOWEVER THE SAME WAS OFFE RED TO TAX FOR THE ASSESSMENT YEAR 2009-10 WHEN THE POSSESSION ITSELF WAS HANDED OVER. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAD N OT ACCEPTED THE CONTENTION OF THE ASSESSEE AND HAD LEVIED CAPITAL G AINS TAX ON THE SALE OF IMMOVABLE PROPERTY DURING THE ASSESSMENT YEAR 2008- 09 AND HAD CONSEQUENTLY LEVIED PENALTY UNDER SECTION 271(1)(C) . IT WAS THE SUBMISSION THAT THE RETURN FOR THE ASSESSMENT YEAR 2009-10 WAS FILED MUCH BEFORE EVEN THE ASSESSMENT WAS TAKEN UP FOR SC RUTINY FOR THE ASSESSMENT YEAR 2008-09. IT WAS THE SUBMISSION THAT THERE WAS NO CONCEALMENT. IT WAS THE SUBMISSION THAT THE ASSESSE E HAD ACCEPTED THE CAPITAL GAINS LEVIED FOR THE ASSESSMENT YEAR 2008-0 9. IT WAS THE SUBMISSION THAT AS THERE WAS NO CONCEALMENT OF INCO ME AND AS THERE BEING ONLY SHIFT OF THE YEAR IN WHICH THE CAPITAL G AINS HAS BEEN ASSESSED THE PENALTY AS LEVIED MAY BE CANCELLED. 4. IN REPLY LD. D.R. VEHEMENTLY SUPPORTED THE ORDE R OF THE ASSESSING OFFICER AND LD. CIT(APPEALS). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE ASSESSEE HA D OFFERED CAPITAL GAINS TAX ON THE SALE OF THE IMMOVABLE PROPERTY IN THE RETURN FOR THE ASSESSMENT YEAR 2009-10. THE ASSESSING OFFICER HAD ON THE GROUND THAT THE SALE DEED WAS EXECUTED ON 12.06.2007 ASSESSED T HE CAPITAL GAINS TAX IN THE ASSESSMENT YEAR 2008-09. FURTHER A PERUSAL O F THE STATEMENT OF FACTS AND THE ORDER OF THE LD. CIT(APPEALS) CLEARLY SHOW THAT THE ASSESSEE I.T.A. NO. 56/KOL./2014 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 4 HAD DISCLOSED THE CAPITAL GAINS DURING THE ASSESSME NT YEAR 2009-10 IN HIS RETURN FILED BEFORE THE SCRUTINY ASSESSMENT FOR THE ASSESSMENT YEAR 2008- 09. IT ITSELF CLEARLY SHOWS THE BONAFIDE OF THE ASS ESSEE THAT HE HAD NO INTENTION OF SUPPRESSING THE FACTUM OF THE SALE OF IMMOVABLE PROPERTY. ADMITTEDLY THE TRANSFER OF THE PROPERTY HAVING BEEN TAKEN PLACE ON 12.06.2007 ON THE EXECUTION OF THE SALE DEED THE C APITAL GAINS WAS LIABLE TO TAX FOR THE ASSESSMENT YEAR 2008-09. HOWEVER CO NSIDERING THE FACT THAT THE ASSESSEE HAD OFFERED THE CAPITAL GAINS FOR THE ASSESSMENT YEAR 2009-10 BECAUSE OF THE REASON THAT THE ASSESSEE WAS UNABLE TO HANDOVER VACANT POSSESSION OF THE PROPERTY AT THE TIME OF RE GISTRATION IS ALSO A BONAFIDE EXPLANATION. IN THESE CIRCUMSTANCES WE AR E OF THE VIEW THAT THE ASSESSEE CANNOT BE SAID TO HAVE CONCEALED HIS PARTI CULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF HIS INCOME. CLE ARLY THIS IS NOT A CASE WHERE THE ASSESSEE HAS SOUGHT TO EVADE THE PAYMENT OF THE CAPITAL GAINS TAX. IN THESE CIRCUMSTANCES WE ARE OF THE VIEW THA T THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS NOT LEVIABLE IN THE PRESENT CASE AND CONSEQUENTLY WE CANCEL THE SAME. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY 2014. SD/- SD/- P.K. BANSAL GEORGE MATHAN (ACCOUNTANT MEMBER) (JU DICIAL MEMBER) KOLKATA THE 31 ST DAY OF JULY 2014 COPIES TO : (1) SRI BHOMRAJ SARAOGI C/O. D.J. SHAH & CO. KALYAN BHAVAN 2 ELGIN ROAD KOLKATA-700 020 (2) INCOME TAX OFFICER WARD-34(1) KOLKATA AAYAKAR BHAWAN POORVA 110 SHANTI PALLI KASBA KOLKATA-700 107 I.T.A. NO. 56/KOL./2014 ASSESSMENT YEAR: 2008-2009 PAGE 4 OF 4 (3) COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES KOLKATA LAHA/SR. P.S.