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Income Tax Appellate Tribunal, “C” BENCH, AHMEDABAD
Before: SHRI PRADIP KUMAR KEDIA & SHRI MAHAVIR PRASAD
PER PRADIP KUMAR KEDIA - AM:
The captioned appeal has been filed at the instance of the Revenue against the order of the Commissioner of Income Tax (Appeals)-4, Ahmedabad (‘CIT(A)’ in short), dated 23.03.2016 arising in the penalty order dated 08.05.2014 passed by the Assessing Officer (AO) under S. 271(1)(c) of the Income Tax Act, 1961 (the Act) concerning AY 2011-12.
ITA No. 1476/Ahd/16 [ITO vs.Shri Jayantilal M. Prajapati] A.Y. 2011-12 - 2 - 2. Briefly stated, the assessee in the instant case, filed its return of income for AY 2011-12 declaring total income of Rs.643190/-. The return of income was selected for scrutiny through CASS. In the course of scrutiny assessment, it was observed by the AO as per the AIR information of ITD Module that the assessee has sold immovable property on 18.01.2011 and the gain therefrom was not recorded. On inquiry, in the course of the assessment, the assessee submitted the working of long term capital gain in respect of aforesaid property transaction, which was not shown in the return of income. As per the working given by the assessee, the capital gain worked out to Rs.1,02,37,907/- and capital gain tax thereon was computed at Rs.20,47,581/-. The AO also found that the assessee could not support brokerage expenses of Rs.1,50,000/- claimed as deduction in its working towards capital gains. The AO accordingly re-computed the escapement of income towards long term capital gain at Rs.1,03,87,907/- and added same to the total income of the assessee. The penalty notice was issued for concealment of income and penalty of Rs.20,77,581/- was imposed under s.271(1)(c) of the Act vide penalty order dated 08.05.2014.
Aggrieved by the penalty imposed, the assessee preferred appeal before the CIT(A).
The CIT(A) took note of the contentions on behalf of the assessee that the assessee was under bonafide belief that land was an agricultural land and was therefore exempted from capital gain tax. The CIT(A) further took note of the contention that the land belong to HUF and was not the individual property. It was further noted by the CIT(A) that the assessee submitted the calculation of the capital gains upfront before the AO at the first opportunity and therefore, no evasive tactics were applied. The CIT(A) accordingly was convinced that the action of the assessee was bonafide and does not call for
ITA No. 1476/Ahd/16 [ITO vs.Shri Jayantilal M. Prajapati] A.Y. 2011-12 - 3 - imposition of penalty. The relevant operative para of the order of the CIT(A) is reproduced hereunder:
“5. I have carefully considered the submissions and have also gone through the assessment order and penalty order. The only ground of appeal is against the levy of penalty of Rs.20,77,581/- u/s 271(1)(c) of the Act. As per the findings given in the assessment order, the appellant filed return of income on 28-09-2011 showing total income of Rs.6,43,190/-. The return was processed u/s 143(1) of Act, Notice u/s 143(2) of the Act was issued on 31-07-2012. A questionnaire alongwith notice u/s 142(1) was issued to the appellant on 17-06-2013. The AO stated that as per AIR information, the appellant sold immovable property on 18-01-2011, but no capital gain was shown in the return of income filed. Vide notice issued u/s 142(1) of the Act, the case of the appellant was fixed for hearing on 01-07-2013. On the date of hearing, the appellant submitted vide submission dated 01-07-2013, the details of capital gain of Rs.1,02,37,907/- and calculated capital gain tax of Rs.20,47,581/- up on the taxable income. As the appellant did not disclose this capital gain in the original return filed and revised return was also not filed by the appellant within the time prescribed as per the Act, the AO made the additions of capital gain income to the returned income. The AO also initiated penalty proceedings for concealment of income and/or furnishing inaccurate particulars of income u/s 271(1 )(c) of the Act The AO levied the penalty stating that as an addition has been made to the returned income, the same shall be deemed to represent the concealed income.
5.1 The appellant contended that he believed that land being agricultural, it was exempt from capital gain tax. He further contended that land was in the name of HUF and not in the name of individual. The moment it was brought to the notice of the appellant that tax is payable on this capital gain, the appellant submitted the calculation of capital gain before the AO at the first opportunity. The questionnaire issued by the AO alongwith notice u/s 142(1) is of very general nature and there was no specific query raised by the AO about this transaction. Keeping in view these facts, penalty should not have been levied. The appellant cited various case laws in support of his contentions.
5.2 The submissions of the appellant and reasons for imposing penalty have been carefully considered. It is a fact that the appellant did not show this transaction in the return filed originally and revised return was also not filed. The appellant submitted calculation of capital gam on the day of first hearing. In the notice issued u/s 142(1) of the Act, there was no specific question asked by the AO about this transaction. Q. No. 8 & 9 of the questionnaire relevant to this issue are reproduced hereunder:
ITA No. 1476/Ahd/16 [ITO vs.Shri Jayantilal M. Prajapati] A.Y. 2011-12 - 4 - “8. Please specify whether any transactions in respect of movable and immovable property is made during the year relevant to assessment year 2031-12, if yes, please furnish copy of conveyance deed/registered documents. Also furnished register document evidencing purchase/ ownership of the sold property and the sources of investment. 9. Please furnish detailed working of STCG/ LTCG earned, if any."
As mentioned above, the questions asked by the AO are of general nature and no specific query was raised about the aforesaid transaction. This shows that the appellant suo moto provided the details of calculation of capital gain & tax upon it, on the date of first hearing, which prove that he had no intention to conceal particulars of income. These facts prove that his belief of non- taxable of agricultural land was bonafide and the moment it was brought to his notice that the capital gain is liable to tax, he submitted calculation of capital gain & tax up on the same before the AO.
The appellant's case is covered by the following judgment of the Hon'ble 1TAT, Ahmedabad :
(i) ITA No. 1424/Ahd/2011 Ashish Satyapal H. Miglani vs. DCIT, ITAT Ahmedabad "C" BENCH
"7. In the case of ACIT vs Ashok Raj Nath (Supra), where the assessee had disclosed the additional income towards the capital gains in the revised return of income and even though the revised return was found to be invalid, the penalty levied u/s 271(1)(c) levied was deleted by the Tribunal by holding as under:
"Held that merely because a notice under section 143(2) had already been issued and assessee filed revised return thereafter, disclosing additional income towards capital gains, which was not correctly shown in original return, that did not tantamount to detection of concealment of income under section 271(1)(c). The assessee voluntarily disclosed additional income during the course of assessment proceedings and paid tax thereon. Even though the revised return was found to be invalid, the Assessing Officer accepted the income as declared in the revised return and computation. The Assessing Officer did not bring any material on record that the declaration of income made by the assessee in his revised return or his Explanation was not bonafide. In these circumstances there appeared no basis for imposition of penalty on the ground that the assessee furnished inaccurate particulars of income. "Therefore, the Commissioner (Appeals) was justified in deleting the penalty."
It is well settled that the parameters of judging the justification for addition made in the assessment case of the assessee is different from the penalty imposed on account of concealment of income or filing inaccurate particulars of income and that certain disallowance/addition could legally be made in the assessment proceeding on the preponderance of probabilities, but no penalty
ITA No. 1476/Ahd/16 [ITO vs.Shri Jayantilal M. Prajapati] A.Y. 2011-12 - 5 - could be imposed u/s 271(1 )(c) of the Act on the preponderance of probabilities and Revenue has to prove that the claim by the assessee was not genuine or was inflated to reduce its tax liability. Further, before us, no material has been brought on record by the Revenue to demonstrate that the explanations and submissions made by the assessee were false. Before us, Revenue has also not brought on record any binding contrary decision in its support. Considering the totality of the facts, and relying on the aforesaid decision of Tribunal, we are of the view that in the present case no penalty u/s 271(1)(c) of the Act is leviable and therefore we direct its deletion. Thus this ground of Assessee is allowed and in the result the appeal of the Assessee is allowed."
ii) ITA Nos. 1179/Ahd/2011 ACIT vs. Shri Bhavinkumar M Dagli. ITAT "B" Bench, Ahmedabad :
"10. We find that in the instant case, it is not in dispute that second return filed by the assessee on 31-3-2007 was not avalid revised return. The only dispute before us is that as per the department, as the additional income disclosed in the subsequent return was after issue of notice u/s. 143[2] and therefore, the information so disclosed cannot be treated as voluntary disclosure and therefore, penalty u/s. 271(1)(c) was justified whereas, as per the AR of the assessee. since the additional income was disclosed prior to detection by the department, the same was a voluntary disclosure and therefore, the CIT[A] was justified hi deleting penalty levied u/s. 271(l)(c) of the Act
It is observed that the investigation in the instant case was commenced by the A.O. only on 24-8-2007 by issue of 142[1] "Notice. No material was brought before us to show: that there was any material available with the department prior to 31-3-2007 to show that there was some additional income then the income disclosed in the original return assessable in the hands of the assessee. In the circumstances, in our considered view, it cannot be held that the disclosure of additional income by the assessee on 31- 3-2007 was after its detection by the department.
We find that the decision of the Hon'ble Gujarat High Court hi the case of Snita Transport [P] Ltd. V. Assistant Commissioner of Income Tax [2014] 42 Taxmann.com 54 [Gujarat] is not applicable on the facts of the instant case. In that case, the Hon. Gujarat High Court observed that a survey was conducted hi the case of the assessee on 30-1-2003 wherein the assessee accepted in the statement recorded of having debited bogus expenditure in its Books of Account. After the above survey and recording of statement, only the assessee disclosed additional income by way of a revised return on 11-3-2003 and on these circumstances, the Hon'ble High Court found levy of penalty' u/s. 271(l)(c) was justified. Thus, it is observed in that case, the assessee disclosed the additional income after the same was detected during the course of the survey by the
ITA No. 1476/Ahd/16 [ITO vs.Shri Jayantilal M. Prajapati] A.Y. 2011-12 - 6 - department. Whereas, in the instant case, there is no such material to show that the department had actually detected any income of the assessee which was not disclosed in the return prior to 31-3-2007, when the assessee disclosed its additional income.
We find that the issue involved in the instant case is squarely covered by the above cited decision of the Tribunal. We, therefore, following the same, do not find any error in the order of the CIT[A]. Therefore, the appeal of the revenue is dismissed.
As the facts of the appellant's case are identical to the facts of the cases decided by the Hon'ble jurisdictional 1TAT, Ahmadabad. The penalty levied by the AO u/s 271(1)(c) of the Act is not found justified. Therefore, it deserves to be deleted, therefore, it is deleted.
In para-4.3 of the assessment order, the AO stated as under:
"4.3 If the case was not selected for scrutiny, there would have been loss of revenue. Considering details filed along with supporting evidence in respect of cost and other expenses incurred, total Long term capital gain of Rs.1,03,87,907/- is worked out and added to the total income of the assesses. Penalty u/s. 274 r.w.s. 271 is being initiated separately for concealment of particulars of income and/or furnishing inaccurate particulars of income.
As found in para-4.3 of the assessment order, the AO did not specify the reason for initiating penalty u/s 271(1)(c) of the Act. The AO mentioned as penalty u/s 274 r.w.s. 271 is being separately initiated for concealment of particulars of income and / or furnishing inaccurate particulars of income. The AO was not specific for which reason, he initiated the penalty. For such unspecific reasons, penalty u/s 271(1)(c) is not leviable. The same has been decided in several cases by the Hon'ble High Court of Gujarat, Ahmadabad. Thus, on this point also, penalty levied deserves to be deleted.”
Aggrieved by the relief granted by the CIT(A), Revenue has preferred appeal before the Tribunal.
The learned DR relied upon the order of the AO.
The learned AR, on the other hand, relied upon the order of the CIT(A).
ITA No. 1476/Ahd/16 [ITO vs.Shri Jayantilal M. Prajapati] A.Y. 2011-12 - 7 - 8. We have carefully considered the rival submissions. The maintainability of the imposition of penalty under s.271(1)(c) of the Act on capital gains arising on sale of property is in question. We have perused the order of the CIT(A) in this regard and also the order of the AO in penalty proceedings as well as quantum proceedings. We notice that CIT(A) has appreciated the facts and circumstances of the case in perspective as noted above and applied the law in proper perspective. The asessee has demonstrated that the bonafide circumstances existed for non-inclusion of the capital gains. The assessee was under mistaken belief that land sold being agricultural land is not susceptible to tax as reproduced (supra). The CIT(A) has rightly interpreted the fact situation and granted relief. We thus decline to interfere.
In the result, appeal of the Revenue is dismissed.
This Order pronounced in Open Court on 29/03/2019
Sd/- Sd/- (MAHAVIR PRASAD) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad: Dated 29/03/2019 True Copy S. K. SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाइल / Guard file. By order/आदेश से,
उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद ।