DEVENDRA NARENDRABHAI THAKKER,,AHMEDABAD vs. ACIT, CIRCLE-5(2), AHMEDABAD

आदेश / O R D E R

PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the assessee against the appellate order of the Commissioner of Income Tax(Appeals)-5, Ahmadabad [CIT(A) in short] vide appeal no.CIT(A)-5/DCIT Cir.5(2)/60/2016-17 dated 07/02/2018 arising in the penalty order passed under s.271(1)(c) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") dated 23/02/2017 relevant to Assessment Year (AY) 2011-12.

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 2 - 2. The assessee has raised the following grounds of appeal:

“1. Invalid & Bad order: a) The Commissioner of Income tax (Appeals)-5, Ahmedabad, erred in rejecting the ground of “penalty levied on the basis of notice u/s 274.271 dated 30.08.2016 is invalid & bad in law as it does not state clear default for which it is issued".

The CIT(A) erred in stating that "in the notice issued u/s 271 (l)(c) of the Act the default has been clearly specified”.

b) Without prejudice to above : The order passed by CIT(A) is invalid & bad as it violates principles of natural justice.

The order is passed without considering and dealing with written submission filed with him in its proper perspective. 2. On merits : The CIT(A) erred is passing the order on original grounds of appeal and not considering revised grounds of appeal filed on 28.12.2017

b) The CIT(A) erred in not accepting the contention that, it is settled principle that what is known to the department cannot be considered as concealment. c) The CIT(A) erred in confirming the penalty stating that "The appellants contention that all details have been furnished while filing the return of income is not correct".

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 3 - 5. The CIT(A) erred in confirming penalty without considering & dealing with the case laws, filed and relied in written submission.” 3. Before coming to the specific issue, it is relevant to understand the brief history of the case.

The assessee during the year has sold its non-agricultural land located at 8/6, Mouje Kadiyali, Taluka-Rajula, Dist-Amreli, Gujarat. The impugned land was not notified in the urban area for the exemption under section 54G of the Act. The assessee on the sale of such land has earned a long-term capital gain of Rs. 1,18,60,239/- only. The assessee against such long-term capital gain has claimed deduction u/s 54EC and 54G for Rs. 44,00,000/- & 74,65,134/- respectively.

The assessee, an individual, engaged in the business of forwarding and customs clearance. He filed his return of income dated 29/09/2011 declaring total income of Rs. 43,83,330/- only. The income tax return of the assessee was processed u/s 143(1) of the Act at the income declared in return. Subsequently, the case of the assessee was selected under scrutiny and accordingly, notices u/s 143(2)/142(1) was served upon the assessee.

The assessment was completed u/s 143(3) of the Act after making the disallowances of certain expenses for Rs.1,53,970/- on ad-hoc basis vide order dated 30.01.2014.

Subsequently, the learned CIT u/s 263 of the Act observed that the order passed u/s 143(3) of the Act is erroneous in so far prejudicial to the interest of the Revenue on the ground that the assessee has claimed exemption u/s 54G for Rs.74,65,134/- for which he was not eligible.

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 4 - Accordingly, the order of the AO was set aside by the learned CIT u/s 263 of the Act vide order dated 16.03.2016 with the direction to disallow the deduction claimed by the assessee u/s 54G of the Act for Rs. 74,65,134/- only.

Accordingly, a show-cause notice was issued by the AO upon the assessee for disallowing the deduction u/s 54G of the Act.

In compliance to it, the assessee submitted that he has already paid taxes along with interest for the wrong claim of deduction u/s 54G of the Act. It was also claimed that deduction u/s 54G for Rs.74,65,134/- was claimed inadvertently on the misinterpretation of the provisions of law.

Accordingly, the AO added the sum of Rs.74,65,134/- on account of wrong deduction claim under section 54G of the Act.

However, the AO in his assessment order passed u/s 143(3)/ 263 of the Act dated 30.08.2016 initiated the penalty proceedings u/s 271(1)(c) for furnishing inaccurate particulars of income.

The AO subsequently issued a notice u/s 274 of the Act vide dated 30.08.2016 for levying penalty u/s 271(1)(c) of the Act on account of furnishing inaccurate particulars of income. The assessee in compliance to it, submitted that the deduction u/s 54G of the Act was claimed inadvertently and accordingly, the assessee agreed for the impugned addition before the learned Pr. CIT. The assessee has already paid the taxes for Rs.25,91,680/- along with interest for Rs.32,600/- on 15.03.2016 and 26.09.2016 respectively. Thus there should not be any question for levying the penalty under section 271(1)(c) of the Act.

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 5 - The assessee also submitted that all the necessary details about capital gain and its exemption u/s 54G were duly filed before the AO during the assessment proceedings u/s 143(3) of the Act. Therefore, there was neither any concealment of income nor furnishing inaccurate particulars of income deliberately.

However, the AO disregarded the contention of the assessee and levied the penalty of Rs.22,61,935/- being 100% of the amount of tax sought to be evaded u/s 271(1)(c) of the Act.

The dispute in the instant case is relating to the claim for the exemption u/s 54G of the Act which is a debatable issue but the assessee to avoid the litigation with the department and to buy peace of mind agreed to such addition.

It was also claimed that the AO allowed the deduction u/s 54G of the Act after due verification in the assessment proceedings. Therefore, it cannot be concluded that the assessee has deliberately furnished inaccurate particulars of income.

However, the learned CIT(A) disregarded the contention of the assessee and confirmed the order of AO by observing as under:

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 6 - Decision: 3.3 In this case, the assessee has filed return of income in 29.09.2011. Assessment order u/s 143(3) of the Act was passed on 30.1.2014 determining total income at Rs.45,37,300/-. Subsequently, the Pr. CIT, Ahmedabad-5 vide order u/s 263 of the Act, dtd. 16.3.2016 held that order u/s.143(3) of the Act dtd. 30.1.2014 is erroneous and prejudicial to the interest of revenue and directed the AO to pass a fresh assessment in accordance with the directions given in the order. The assessment u/s. 143(3) r.w.s. 263 was finalized on 30.08.2016 at total income of Rs.1,20,02,434/- after disallowing reduction claimed by the assessee u/s.54G amounting to Rs.74,65,134/-. Long term capital gain of Rs.1,80,60,239/- had arisen in the hands of the assessee on sale of land which is a non-agricultural land and not a notified urban area for the purpose of Section 54G. Capital gain of Rs.74,65,134/- was utilized for the purpose of new capital asset situated at Ahmedabad which comes under the territory of urban area of Ahmedabad. Both the conditions required as for the Section 54G of the Act for claiming exemption under the said Section were not fulfilled in the instant case. During the assessment proceedings the assessee admitted to have made an error in claiming deduction u/s 54G of the Act. Accordingly, the AO has disallowed the claim of exemption u/s.54G of the Act. Thereafter penalty proceedings u/s.271(1)(c) of the Act was initiated. During the penalty proceedings the assessee has submitted that the incorrect claim u/s.54G in the return of income was the result of a genuine mistake on part of the assessee and that the assessee had accepted the mistake during the proceeding sunder the Act. The AO has rejected the submissions of the assessee and held that in a case where any particular filed in the return of income by the assessee found to be inaccurate, erroneous or false and which has an impact on total income return by the assessee. it would attract liability for penalty u/s.271(1)(c) for furnishing inaccurate particulars of income. Accordingly, the AO has levied penalty amounting to Rs. 22,62,000/- u/s.271(1)(c) of the Act for furnishing inaccurate particulars of the income by way of wrong claim of deduction u/s. 54G of the Act.

3.4. During the appellate proceedings the appellant has objected the penalty proceedings on the ground that notice u/s. 274 r.w.s. 271 was not received with the order u/s.143(3) r.ws. 263 of the Act dtd. 30.08.2016 and in the notice no clear default is mentioned whether

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 7 - this for concealed income or inaccurate particulars of income. It is contended that return of income was filed disclosing full details of capital gain vis-a-vis claim made u/s.54G. It is also contended that original order u/s. 143(3) was passed after due verification of case bv two different officers in reference to claim u/s.54G also and the claim was allowed. It is contended that order u/s.263 automatically proves that claim was made by the assessee and allowed by the officers originally, question of nondisclosure of fact or filing inaccurate particulars of income does not arise. It is also contended that merely on account of different opinion no penalty can be imposed. Further ii is contended that if even claim is not sustainable in law no penalty can be imposed.

3.5. Facts of the case and the submissions are considered. A perusal of assessment order. it is found that penalty proceedings u/s.271(1)(c) of the Act was property initiated and penalty notice u/s.274 r.w.s. 271(1)(c) of the Act was issued on 30.08.2016 which was duly served upon the assessee. In the notice issued u/s.271(1)(c) of the Act the default has been clearly specified. Therefore, objections raised regarding the initiation of proceedings u/s.271(1)(c) of the Act are dismissed. The appellant has claimed deduction u/s.54G of the Act which was not allowable therefore the same was disallowed by the AO in the assessment order passed u/s.143(3) r.w.s. 263 of the Act. ! Thereafter penalty u/s.271(1)(c) was levied for furnishing inaccurate particulars of income in the return of income. The assessee has admitted during the assessment proceedings that the deduction has been wrongly claimed in the return of income and admitted the mistake. Regarding penalty it was contended that it is a bonafide mistake therefore no penalty can be levied, A perusal of Section 54G of the Act clearly shows that the main conditions for availing the exemption U/s. 54G are as under:-

In the instant case the capital gain had arisen on sale of non- agricultural land situated in non-notified urban area for the purpose of section 54G of the Act. Further the new capital asset purchased is

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 8 - also situated at Ahmedabad and comes under territory of urban area of Ahmedabad, This clearly shows that the appellant has failed to fulfill both the conditions prescribed u/s.54G of the Act. In spite of that the appellant has claimed deduction while filing the return of income. In the present case, the assessee made a claim which is not only incorrect in law but is also wholly without any basis and in such a situation it would be difficult to say that the appellant would still not be liable to penalty u/s.271(1)(c) of the Act. In various judgments, it is established that whenever there is a difference between the returned income and the assessed income, there is inference of concealment. The onus is on the assessee to rebut the inference of concealment, In the instant case, the assessee has failed to do so. The appellant's contention that all details have been furnished while filing the return of income Ls not correct. The appellant's plea that the disallowance of claim of deduction merely on account of difference of opinion is not at all correct. As per the provisions of Act it is very much clear that the assessee has not fulfilled the condition u/s.54G of the Act and therefore, deduction U/S.54G of the Act is not allowable to the appellant. Considering the above, penalty levied by the AO is justified and the same is confirmed. Thus the grounds of appeal are dismissed.

Being aggrieved by order of learned CIT(A) assessee is in the second appeal before us. The learned AR before us filed a paper book which is running from Pages 1 to 79 and made written submissions which are reproduced as under: “Invalid & Bad Penalty Penalty levied is invalid & bad as Notice u/s 274 r.w.s 271 for penalty u/s 271(1)(C) does not state clear default for which it is issued. Penalty Notice does not mention specifically, whether it is issued for concealment of income or for furnishing inaccurate particulars of income. It specifies ..... have concealed the particulars of your income and furnished inaccurate particulars of such income.......................

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 9 - While issuing notice for penalty AO has to apply mind for specific default. (S.C.) SSA's Emerald Meadows 386 ITR 13 (Mumbai (TAT) Meherjee Cassinath Holding P. Ltd. ITAT online 11- 05-2017

Without prejudice to above Facts Return of Income was filed disclosing full details of capital gains vis-a- vis claim made u/s 54-G.

Original order u/s 143(3) dated 30-01-2014 was passed after due verification of case by two different officers, in reference to claim u/s 54-G also, calling for relevant details from time to time. Claim u/s 54- G was allowed.

After finalization of Assessment, on account of Audit objection, Notice u/s 263 was issued by Pr. Commissioner of Income Tax. Said notice was issued on account of different opinion than Income Tax Officers, regarding claim allowed u/s 54-G.

Order u/s 263 automatically proves that claim was made by the Assessee and allowed by officers originally, question of non disclosure of facts or filing inaccurate particulars of income does not arise.

Notice u/s 263 dated 12-02-2016 was issued.

Appeared before Pr. Commissioner of Income Tax on 29-02-2016 and discussed the issue. After discussion, agreed for disallowance, to buy mental peace and to avoid long drawn litigation, as claim u/s 54-G found debatable. The Said agreement was made before Pr. Commissioner of Income Tax with clear understanding that penalty proceedings would not be initiated.

Paid Rs. 25,91,680/- on 15-03-2016. Order u/s 263 is dated 16-03-2016. Order u/s 143(3) r.w.s 263 is dated 30-08-2016.

Submission

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 10 - On facts, when details are dearly disclosed, allowed by AO after due verification, it cannot be concealment or inaccurate particulars of income. May it be wrong claim or claim wrongly allowed but question of furnishing inaccurate particulars of income does not arise.

Concealment implies deliberate Act S.C. K.C. Builders 265 ITR 562

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 11 -

The learned AR also further submitted as under: “During the course of hearing today on 17/05/2018, your Honours instructed to give clarification regarding how the claim u/s 54G was made on the basis of the facts of the case.

I, Devendra N. Thakker, solemnly declare the following:

This is regarding the claim mad u/s 54G. Sir, I was under the bonafide belief that if on the sale of a capital asset, if the sales proceeds are invested in another capital asset, then exemption would be available.

The concerned gain was from sale of Land at Rajula. Against the sale, I purchased another commercial property. I made inquiries regarding the distance of Rajula from Kadiyali. I also invested the sums in new property for the purpose of business. I was advised on the basis of various case laws wherein the Court had allowed deduction saying that one should not go in to the intricacies of laws and if the intention of INVESTING the funds within time limit is fulfilled, then exemption would be allowable.

I had taken the print out from Google regarding the distance from Rajula to Kadiyaii, where the property was situated. Copy of the map is enclosed.

The deduction is available on shifting from Urban area to any other area.

URBAN area means any such area within the limits of Municipal Corporation or Municipality as the Central Government may notify from time to time. The new property is situated at Sola, which according to me; fell outside the Ahmedabad Municipal Corporation at that time. Corporation limits were drastically changed during that period.

On facts, I was advised regarding the allowability of deduction. I was under the bonafide belief that exemption would be available. All the relevant details like sale deed, purchase deed, distance etc. were produced during the assessment proceeding before the ACIT/ DCIT

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 12 - and after due verification the claim was allowed after scrutiny by two Officers.

The point came under discussion with the Pr. CIT, who explained to us regarding the disallowability of the claim. But then it was agreed, that if we pay the due taxes, then no penalty would be levied. So I genuinely accepted the error on my part and paid the due taxes, to buy peace of mind, even before the order was passed by the Assessing officer.

In view of the bonafide belief as stated above, the claim was made. I have not filed any inaccurate particulars while making the claim.

On the other hand, learned DR submission before us are as under:

“Sub:- Rejoinder to assessee's submission dated 17.05.2018 regarding exemption u/s. 54G.

During the course of hearing, in the above mentioned case your Honours have directed to the A.R. to give clarification regarding claim of exemption u/s. 54G and to justify assessee's real intention behind this claim. Assessee has made submissions in this regard and rejoinder to which is hereunder:

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 13 - transfer purchased / achieved land or building for the purpose of his business, in a Non Urban Area. In this case, not only legislative intent has been defeated but both the conditions are also not fulfilled as firstly the land which is sold is not in urban area and land which is purchased is in urban area i.e. proper Ahmedabad. Intentional ignorance of law, not only related to Income Tax Act but also to Municipal and Urban Land holdings can't be said to be bonafide as a assessee himself was as custom clearance agent since last 20 years and regularly filing his Income Tax Returns. In this case, all that has been done by assessee is with clear intention to avoid taxes by disrespecting the legal system and with clear mensrea and malafide intention to avoid taxes. Hence, it is requested that penalty should be levied in this case.”

The ld. DR vehemently supported the order of the lower authorities.

The learned AR before us has challenged the penalty order on two counts; firstly, the notice issued u/s 274 of the Act is defective, and secondly, the mistake was committed by him inadvertently due to wrong interpretation of the law.

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 14 -

There is no ambiguity that there was no specific charge mentioned by the AO in the notice issued u/s 274 of the Act whether it was levied on account of concealment of income or furnishing inaccurate particulars of income. But on perusal of the penalty order we note that the penalty was levied on account of furnishing inaccurate particulars of income. Therefore, we are of the view that the lower authorities was conscious while levying the penalty in the order u/s 271(1)© of the Act. Therefore, the penalty proceedings cannot be held invalid merely on the ground that the notice does not specify the specific charge for levying the penalty. In holding so, we find support and guidance from the judgment of the Jurisdictional High Court in the case of Snita Transport Pvt. Ltd. vs. ACIT reported in 42 taxman.com 54, wherein it was held as under:

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 15 - that "Now the language of "and/or" may be proper in issuing a notice as to penalty order or framing of charge in a criminal case or a quasi- criminal case, but it was incumbent upon the IAC to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by the assessee. No such clear cut finding was reached by the IAC and, on that ground alone, the order of penalty passed by the IAC was liable to be struck down."

In view of the above, we hold that not mentioning the specific charge in the notice issued u/s 274 of the Act cannot vitiate the penalty proceedings u/s 271(1)© of the Act.

The case law relied on the learned AR, i.e. CIT vs. SSA’s Emerald Meadows is not applicable to the instant facts of the case. The Hon’ble Supreme Court, in this case, has just dismissed the SLP, and therefore it cannot be said that the order of Hon’ble High Court got merged with the order Hon’ble Supreme Court. In this regard we find support & guidance from the judgment of Hon’ble Supreme Court in the case of Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust [1978] 3 SCC 119 (a three-Judge Bench’s decision) wherein it was observed that dismissal of special leave petition by the Supreme Court by a non-speaking order of dismissal where no reasons are given does not constitute res judicata. All that can be said to have been decided by the Court is that it was not a fit case where special leave should be granted. It was held that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in the merger of the order impugned into the order of the Supreme Court. In the instant case there is direct judgment of the Hon’ble jurisdictional High Court in the case of Snita Transport Pvt Ltd. (supra) where it was observed categorically that non mentioning the specific charge in the notice issued u/s 274 of the Act cannot make the penalty proceedings u/s 271(1)© of the Act as invalid.

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 16 -

Similarly, the case law relied on the assessee, i.e. Price Waterhouse Coopers Pvt. Ltd. (supra) also does not support the case of the assessee. In the case of Waterhouse Coopers Pvt. Ltd. (supra), there was disclosure in the tax audit report for the disallowance to be made in the tax audit for the provision of gratuity under section 40A(7) of the Act. But the same was not disallowed in the computation of income. Therefore, there was no deliberate act either to conceal the income nor to furnish the inaccurate particulars of income. Similarly, we also note that the facts of the case, i.e. Reliance Petroproducts Pvt. Ltd. does not support the case of the assessee. It is because the related transactions were disclosed in the accounts, but the same was not disclosed in the statement of income inadvertently. Thus there was no deliberate act either to conceal the income nor to furnish the inaccurate particulars of income.

In the case on hand, the assessee was well aware of all the provisions of Act and accordingly, he has rightly claimed the deduction u/s 54EC of the Act. The assessee in the instant case has claimed the deduction u/s. 54G of the Act against the transfer of agriculture land, which was not notified for the purpose of Section 54G of the Act. Thus the deduction claimed under section 54G of the Act is contrary to the provisions of law. In the given facts & circumstances the assessee cannot take the shelter of the ignorance of the provisions of law.

Similarly, the assessee agreed to such addition in the proceedings under section 263 of the Act, cannot be the ground for not levying the penalty. In this regard, we also rely on the judgment of Supreme Court in the case of MAK Data (p) Ltd. Vs. CIT reported in 38 taxmann.com 448 wherein it was held as under:

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 17 - “8. Assessee has only stated that he had surrendered the additional sum of Rs.40,74,000/- with a view to avoid litigation, buy peace and to channelize the energy and resources towards productive work and to make amicable settlement with the income tax department. Statute does not recognize those types of defences under the explanation 1 to Section 271(l)(c) of the Act. It is trite law that the voluntary disclosure does not release the Appellant-assessee from the mischief of penal proceedings. The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he had to be absolved from penalty. 9. We are of the view that the surrender of income in this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the AO in the search conducted in the sister concern of the assessee. In that situation, it cannot be said that the surrender of income was voluntary. AO during the course of assessment proceedings has noticed that certain documents comprising of share application forms, bank statements, memorandum of association of companies, affidavits, copies of Income Tax Returns and assessment orders and blank share transfer deeds duly signed, have been impounded in the course of survey proceedings under Section 133A conducted on 16.12.2003, in the case of a sister concern of the assessee. The survey was conducted more than 10 months before the assessee filed its return of income. Had it been the intention of the assessee to make full and true disclosure of its income, it would have filed the return declaring an income inclusive of the amount which was surrendered later during the course of the assessment proceedings. Consequently, it is clear that the assessee had no intention to declare its true income. It is the statutory duty of the assessee to record all its transactions in the books of account, to explain the source of payments made by it and to declare its true income in the return of income filed by it from year to year. The AO, in our view, has recorded a categorical finding that he was satisfied that the assessee had concealed true particulars of income and is liable for penalty proceedings under Section 271 read with Section 274 of the Income Tax Act, 1961.”

In view of above, we hold that the assessee was guilty of furnishing the inaccurate particulars of income. Therefore, we do not find any

ITA No.762/Ahd/2018 Devendra Narendrabhai Thakker vs. ACIT Asst.Year –2011-12 - 18 - infirmity in the order of lower authorities. Hence, the grounds of appeal filed by the assessee are dismissed.

This Order pronounced in Open Court on 03/07/2018

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