TIRUPATI DEVELOPERS,MUMBAI vs. ADDITIONAL, JOINT, DEPUTY, ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX OFFICER, NFAC, DELHI
What did the Tribunal hold?
The Tribunal held that the penalty levied under Section 274 r.w.s. 270A for misreporting of income is not sustainable. The Tribunal noted that in the quantum appeal (ITA No. 2628/Mum/2023), the addition made by the AO under Section 50C was deleted. The reasons for deletion were that the consideration of Rs. 10,00,000 was received only for the sale of an additional area of 125 sq.ft, not the entire flat, and that no addition under Section 50C can be made when the assessee is engaged in the business of builders and developers, where income from sale of property is offered under the head Profits and Gains from Business or Profession. Since the addition in the quantum appeal was deleted, the basis for levying penalty for misreporting income no longer exists. Accordingly, the penalty was deleted.
What were the facts?
The assessee, Tirupati Developers, a partnership firm engaged in building and development, filed its return of income for AY 2018-19 declaring nil income. The case was selected for scrutiny based on information from the sub-registrar's office indicating the sale of immovable property on 29.07.2017 for Rs. 10,00,000, while the market value was Rs. 40,42,000. The Assessing Officer (AO) added the difference of Rs. 30,42,000 under Section 50C. The AO also initiated penalty proceedings under Section 274 r.w.s. 270A, levying a penalty of Rs. 18,79,956 for alleged misreporting of income, as the assessee did not respond to show cause notices. The CIT(A) confirmed the penalty. The assessee appealed to the ITAT against the penalty.
What were the issues?
1. Whether the penalty levied under Section 274 r.w.s. 270A for misreporting of income is sustainable, given that the quantum addition under Section 50C was based on a misunderstanding of facts? Assessee's Contention: The assessee argued that there was no misreporting of income. The quantum addition was made on a misunderstood fact, as the transaction was not a sale of the entire flat but only the additional area developed by the assessee. Since the quantum addition is not sustainable, the penalty for misreporting income is also not sustainable. Revenue's Contention: The Revenue relied on the orders of the lower authorities.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “E” BENCH, MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRY, JM &
Tirupati Developers, Additional, Joint, Deputy, Ground Floor, MAT Cornel Heights, Assistant Commissioner of Vs. Marian Colony, Borivali West, Income Tax, ITO, NFAC, Mumbai- 400103 Delhi. PAN : AAGFT7632K Appellant) : Respondent) Appellant/Assessee by : Ms Zarna Chandwani, CA Revenue/Respondent by : Shri P.D. Chougule, Sr. DR : 10.01.2024 Date of Hearing : 16.01.2024 Date of Pronouncement O R D E R
Per Padmavathy S, AM:
This appeal is against the order of Commissioner of Income Tax, Appeals, / National Faceless Appeal Centre [in short ‘the CIT(A)’] dated 19.06.2023 for the AY 2018-19.
The assessee is a partnership firm engaged in the business of builders and developers. The assessee filed the return of income for assessment year 2018-19 declaring income at nil. The case was selected for scrutiny for the reason that specific information was received from sub registrar office that the assessee has sold immovable property on 29.07.2017 for consideration of Rs.10,00,000/- whereas the market value of the said property is Rs.40,42,000. The assessee submitted before the assessing officer the copy of redevelopment agreement between assessee and Sterling Apts CHS Ltd by virtue of which the assessee has the right to sell the saleable area after redevelopment of the society. The assessing officer held that the assessee has sold Flat No. Sadnika KRA 202, Dusara Majala, Sterling Co-op Housing Society, Borivali, Mumbai for a sale consideration of Rs.10,00,000 whereas the stamp duty value of the property is Rs.40,42,000. Therefore the assessing officer proceeded to make an addition under section 50C of the income tax act (the Act) for the difference of Rs.30,42,000. The assessing officer also initiated penalty proceedings under section 274 r.w.s.270A for the reason that the assessee has misreported the income. The assessing officer passed the penalty order levying a penalty of Rs.18,79,956 for the reason that the assessee has not responded to the show cause notices and that the assessee has not reported the income arising from the sale of the immovable property.
Aggrieved the assessee filed further appeal before the CIT(A) who confirmed the levy of penalty by the assessing officer. The assessee is in appeal before the Tribunal contending the levy of penalty under section 270A.
The ld AR submitted that there is no misreporting of income by the assessee and that the quantum addition is made by the revenue on the basis of a misunderstood fact. The ld AR submitted that the impugned transaction has been incorrectly taken as sale of flat whereas the correct fact is that the assessee sold only the additional area in the flat developed by the assessee for which the purchaser has agreed to pay the consideration. The ld AR argued that since there is no merit in the quantum addition, the penalty levied for the reason that the income is reported is not sustainable.
The ld DR relied on the order of the lower authorities
We heard the parties and perused the material on record. We have while adjudicating the quantum appeal vide have deleted the addition made by the assessing officer under section 50C for the reason that the assessee has received the consideration of Rs.10,00,000 only towards the sale of additional area of 125 sq.ft and not the entire flat and also for the reason that no addition under section 50C can be made when the assessee is engaged in the business of builders and developer where the income from sale of property is offered under the head Profits and Gains from Business or Profession. Considering the fact that the addition made in the quantum appeal is deleted, we hold that the penalty levied under section 274 r.w.s. 270A stating that the assessee has misreported the income is not sustainable. Accordingly we delete the penalty levied by the assessing officer.
In result the appeal of the assessee is allowed.
Order pronounced in the open court on 16-01-2024.
More judgments on Section 50C
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