V.Sujatha, Hyd, Hyderabad v. ITO, Ward-6(3), Hyd, Hyderabad

ITA 894/HYD/2016 | 2008-2009
Pronouncement Date: 29-11-2017 | Result: Partly Allowed

Appeal Details

RSA Number 89422514 RSA 2016
Assessee PAN AAVPV9025F
Bench Hyderabad
Appeal Number ITA 894/HYD/2016
Duration Of Justice 1 year(s) 5 month(s) 14 day(s)
Appellant V.Sujatha, Hyd, Hyderabad
Respondent ITO, Ward-6(3), Hyd, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 29-11-2017
Last Hearing Date 31-10-2017
First Hearing Date 31-10-2017
Assessment Year 2008-2009
Appeal Filed On 15-06-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC) HYDERABAD BEFORE SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER I.T.A. NO. 894/HYD/2016 ASSESSMENT YEAR: 2008-09 SMT. V. SUJATHA HYDERABAD [PAN: AAVPV9025F] VS INCOME TAX OFFICER WARD-6(3) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI M.V. ANIL KUMAR AR FOR REVENUE : SHRI K.J. RAO DR DATE OF HEARING : 15-11-2017 DATE OF PRONOUNCEMENT : 29-11-2017 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-9 HYDERABAD DATED 28-01-2016 FOR THE AY. 2008-09 ON THE PENALTY U/S. 2 71(1)(C) OF THE INCOME TAX ACT [ACT] LEVIED AND CONFIRMED BY LD.C IT(A) AT RS. 7 01 591/-. 2. CONDONATION: THE APPEAL WAS FILED WITH A DELAY OF 55 DAYS. THE DELAY IS STATED TO BE MISPLACEMENT OF ORDER BY SERV ANTS WHO RECEIVED THE ORDER IN HER (ASSESSEE) ABSENCE. CONSID ERING THE AFFIDAVIT FILED THE DELAY IS CONDONED. 3. BRIEFLY STATED FACTS ARE THAT ASSESSEE HAD INVESTED IN PORT FOLIO MANAGEMENT SCHEME WHICH EARNED A GAIN OF RS.1 9 47 391/-. SINCE STT WAS PAID ASSESSEE WAS ADVISED THAT NO CAPI TAL GAIN HAS TO BE PAID. AT THE TIME OF SCRUTINY ASSESSEE FILED REV ISED RETURN ADMITTING THE INCOME BUT SINCE THE TIME FOR FILING REV ISED RETURN OF I.T.A. NO. 894/HYD/2016 :- 2 - : INCOME WAS OVER ASSESSING OFFICER (AO) LODGED AND ADDED THE SAME AS INCOME IN THE ASSESSMENT. AO ALSO FOUND OUT T HAT ASSESSEE DID NOT OFFER INTEREST INCOME OF RS. 54 161/ - EARNED IN THE BANK A/C. ASSESSEE CLAIMED DEDUCTION U/S. 54F AT RS. 1 51 08 028/- BEING THE ENTIRE LONG TERM CAPITAL GAIN. AO REWORKED OUT THE DEDUCTION PROPORTIONATELY AND RESTRICTED THE SAME TO RS. 1 30 66 800/-THEREBY DISALLOWING THE CLAI M TO AN EXTENT OF RS. 20 41 230/-. ALL THE ABOVE THREE AMOUNTS ARE CONSIDERED FOR LEVY OF PENALTY U/S. 271(1)(C) FOR C ONCEALMENT OF INCOME. 4. IT WAS THE EXPLANATION OF ASSESSEE THAT THE LEGAL OPI NION GIVEN BY THE COUNSEL THAT THERE IS NO CAPITAL GAIN ON THE STT P AID TRANSACTIONS WAS NOT ACCEPTED BY AO STATING THAT SHE IS A PROMOTER OF A COMPANY AND HAS A BATTERY OF LEGAL ADVIS ORS AND HER HUSBAND ALSO HAS LEGAL KNOWLEDGE. THE EXPLANATION FO R NOT OFFERING INTEREST INCOME WAS THAT SHE WAS UNDER THE IMPRESSION TH AT THE BANK INTEREST WAS EXEMPT. ON THE THIRD ITEM OF CLAIM U/S . 54F IT WAS THE SUBMISSION THAT THE INVESTMENT MADE WAS ONLY O F CAPITAL GAIN BUT NOT NET CONSIDERATION AND SHE GOT CONFUSED WITH PROVISIONS OF SECTION 54 AND 54F WHICH HAD DIFFERENT PARAMETERS. AO DID NOT ACCEPT. 5. BEFORE THE LD.CIT(A) THE SAME SUBMISSIONS WERE MA DE AND RELIED ON THE CASE LAW. LD.CIT(A) DID NOT ACCEPT THEM AND DISMISSED THE CONTENTIONS BY STATING AS UNDER: 4.2 DURING THE COURSE OF THE APPELLATE PROCEEDINGS THE ASSESSEE SUBMITTED THAT SHE HAS MISUNDERSTOOD THE PROVISIONS OF THE IT ACT AND UPON KNOWING THE LEGAL STAND SHE HAS FILED THE REVI SED RETURN AND PAID THE TAXES AND THEREFORE REQUESTED FOR DROPPING OF T HE PENALTY PROCEEDINGS. I.T.A. NO. 894/HYD/2016 :- 3 - : HOWEVER; THE CONTENTIONS OF THE ASSESSEE ARE NOT AC CEPTABLE AS THE NON ADMISSION OF SHORT TERM CAPITAL GAIN OF RS. 19 47 3 91 THE LONG TERM CAPITAL GAIN OF RS. 20 41 230/- AND THE INTEREST IN COME OF RS. 54 161/- WOULD NOT HAVE COME TO LIGHT BUT FOR THE SCRUTINY P ROCEEDINGS. FURTHER IT IS SEEN FROM THE FILE THAT IT IS ONLY AFTER THE DEPART MENT QUESTIONED THE ASSESSEE AS PER THE DETAILS CONTAINED IN AIR DATA T HAT THE ASSESSEE CAME FORWARD WITH THE DISCLOSURE. FURTHER SHE HAS ALSO FURNISHED INACCURATE PARTICULARS WITH REGARD TO THE CLAIM OF EXEMPTION W /S 54F AND HAS ALSO NOT DISCLOSED INTEREST INCOME IN THE RETURN. THEREF ORE THE ASSESSEE HAS CLEARLY CONCEALED THE PARTICULARS OF INCOME BY FURN ISHING INACCURATE PARTICULARS. I PLACE RELIANCE ON THE FOLLOWING CASE LAWS: 1) DAYABHAI GIRDHARBHAI VS. CIT (BORN) 32 ITR 677. 2) CIT VS HAGI P. MOHAMMED (KAR) 132 ITR623. 3) COMMISSIONER OF INCOME TAX (P&H) 92 ITR 487. 4) SADRI PRASAD OM PRAKASH VS. CIT (P&H) 163 ITR 44 0. 5) S.R. ARULPRAKASAM VS PREMAMALINI VASAM INCOME T AX OFFICER (MOD) 1631TR 487. 6) J.C. AGRWAL VS. CIT (GAUHATI) 102 ITR 408. 7) CIT VS. J.K.A. SUBRAMANIA CHETTIAR (MOD) 110 ITR 602. 8) RAVI & CO. VS ACIT (MOD) 271 ITR 286. IN ALL THE ABOVE MENTIONED CASES IT WAS HELD THAT PENALTY U/S 271(1)(C) IS ATTRACTED NOTWITHSTANDING THE FACT THAT THE ASSESSE E HAS CORRECTED HIS RETURN AND WAS ACCEPTED BY THE DEPARTMENT. IT WAS F URTHER HELD THAT WHEN THE ASSESSEE DISCOVERS ANY OMISSION OR WRONG STATEM ENT IN THE ORIGIN RETURN HE CANNOT GET RID OF THE PENALTY BY MERELY FILING REVISED RETURN. 6. BOTH THE PARTIES RELIED ON RESPECTIVE CONTENTIONS. AF TER CONSIDERING THE SAME I AM OF THE OPINION THAT PENALTY PROCEEDINGS ARE NOT ATTRACTED ON THE CLAIM MADE U/S. 54F. ALL THE PA RTICULARS REGARDING THE CLAIM WAS MADE AND IT WAS ONLY THE COMPU TATIONAL MISTAKE WHICH RESULTED IN DISALLOWANCE OF THE CLAIM TO AN EXTENT OF RS. 20 41 230/-. MERE DISALLOWANCE OF CLAIM DOES NO T ATTRACT PENALTY U/S. 271(1)(C) EITHER AS CONCEALMENT OF INCOM E OR FURNISHING OF INACCURATE PARTICULARS. RELIANCE IS PLA CED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS RE LIANCE PETROPRODUCTS LIMITED [322 ITR 158]. THUS THE PENALTY U/S. 271(1)(C) ON DISALLOWANCE OF CLAIM PARTLY U/S. 54F C ANNOT BE CONSIDERED FOR LEVYING OF PENALTY. I.T.A. NO. 894/HYD/2016 :- 4 - : 7. COMING TO THE OTHER TWO AMOUNTS THE EXPLANATION OF ASSESSEE IS NOT BONAFIDE. ASSESSEE WAS ALREADY FILI NG RETURNS IN EARLIER YEARS AND HAS INCOMES AND INVESTMENTS. ASSES SEE INVESTED FUNDS IN PORT FOLIO MANAGEMENT. AS POINTED BY AO SHE IS ALSO A PROMOTER OF A COMPANY. THUS THE REASON OF LEGAL COUN SEL OPINION IS NOT PLAUSIBLE IN THE GIVEN CIRCUMSTANCES. THE FILI NG OF REVISED RETURN IS NOT ACCOMPANIED BY PAYMENT OF RELEVANT TAX AS CAN BE SEEN FROM THE ORDER OF AO WHERE THERE IS NO CREDIT FO R ANY PRE-PAID TAXES. THEREFORE I AM OF THE OPINION THAT ASSESSEE HA S CONCEALED THE INCOME WHICH WAS BROUGHT TO TAX UNDER THE HEAD SHO RT TERM CAPITAL GAIN ON PORT FOLIO MANAGEMENT. 8. LIKE-WISE THERE IS NO VALID REASON FOR NOT OFFERI NG THE INTEREST INCOME EARNED IN THE BANK ACCOUNTS. THE CLAIM THAT BAN K INTEREST IS EXEMPT IS NOT ACCEPTABLE. BEING AN INCOME TAX ASSES SEE EARLIER ALSO THIS REASON ADVANCED BY ASSESSEE IS NOT BONAFI DE. THUS TO THE EXTENT OF PENALTY ON SHORT TERM CAPITAL GAINS AMOUNT AND INTEREST INCOME THE SAME IS CONFIRMED AND PENALTY ON THE AMOUNT OF DISALLOWANCE U/S. 54F IS HEREBY DELETED. AO IS D IRECTED TO RE-WORKOUT THE SAME ACCORDINGLY. 9. IN THE RESULT APPEAL OF ASSESSEE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER 2017 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD DATED 29 TH NOVEMBER 2017 TNMM I.T.A. NO. 894/HYD/2016 :- 5 - : COPY TO : 1. SMT. V. SUJATHA. C/O. CA BELDI SRIDHAR BELDI & ASSOCIATES CHARTERED ASSOCIATES 6-3-609/195 ANAN D NAGAR KHAIRATABAD HYDERABAD. 2. THE INCOME TAX OFFICER WARD-6(3) HYDERABAD. 3. CIT (APPEALS)-9 HYDERABAD. 4. PR.CIT-6 HYDERABAD. 5. D.R. ITAT HYDERABAD. 6. GUARD FILE.