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Income Tax Appellate Tribunal, DELHI BENCH ‘G’, NEW DELHI
Before: SH. G.D.AGARWAL & SH. KUL BHARAT
ORDER PER KULBHARAT, J.M.
These two appeals by different assessee’s against the different order of the Commissioner of Income Tax (Appeals)- Ghaziabad bath dated 06.08.2015. Since the both appeals have identical grounds and arise from the same transaction. The appeals were taken up together and are being disposed of by way of a consolidated order. 2. Ld. Counsel for the assessee submitted that may be taken up first. Ld. DR has no objection, therefore, the is taken up first adjudication.
First we take up ITA No. 5752/Del./2015 to assessment year 2010-11. 3. The assessee has raised following grounds of appeal :- 1. “That the Ld. CIT(A) erred on facts and circumstances of the case and in law in brushing aside the legal proposition that the revised computation cannot be ignored with reference to sections 139(1), 139(4) and 139(5) of I.T. Act on technicalities.
2. That the Ld. CIT(A) also erred in law and on facts in over ruling/over looking various supportive judicial pronouncements in a summary, cursory and cryptic manner without legally valid reasons/ comments.
3. That the Ld. CIT(A) further erred in law and on facts in discarding the genuine and reasonable plea of the appellant, having zero knowledge of complicated Tax law, that the information regarding sale of property was not elicited at the time of preparation of return by erstwhile Ld. Counsel/ Chartered Accountant.
4. That in doing so, the Ld. CIT(A) failed to appreciate that there was no mal intention in withholding the said information, as its disclosure would have enabled the appellant to claim exemption from capital gain tax as per law, in the return itself.
5. That without prejudice to above, Ld. CIT(A) also erred in law and on facts in ignoring the serious violation of audi- alterm rules and contravention of provisions of section 274(1) of I.T. Act by the Ld. A.O, even though it was vehemently agitated during appellate proceedings.
6. The likewise, the Ld. CIT(A) erred in law and on facts in brushing aside the failure on the part of Ld. A.O to record his satisfaction, a prerequisite for initiation of penalty proceeding in the assessment order.
7. That in view of above glaring legal lapses/ lacunea, the impugned first appellate order based on illogical and unreasonable grounds is liable to be quashed in the interest of equity and natural justice.” 4. Facts in brief are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the “Act”) was framed vide order dated 14.12.2012. 5. The assessing officer during the course of assessment proceedings noticed that the assessee jointly with her husband sold a property and capital gain arising there from was not disclosed in her return of income. Therefore, the AO made addition of the capital gain arising from the transfer of the capital asset and initiated the penalty proceedings u/s. 271(1)(c) of the Act. Subsequently, the assessing officer imposed penalty on the amount of capital gain which was not disclosed by the assessee. Against this, the assessee preferred an appeal before ld. CIT(A) who after considering the submissions of the assessee confirmed the penalty. Aggrieved by this the assessee preferred the present appeal. 6. Effective ground in this appeal is against the confirmation of penalty. Ld. Counsel for the assessee vehemently argued that the assessing officer was not justified in initiating the penalty and imposing the same. He submitted that the authorities below failed to appreciate the fact it was the assessee who in response to the notice u/s 142(1) of the Act informed about the sale of property and offered the long term capital gain for taxation. He submitted it was not upon the detection made by the assessing officer, rather it was upon volunteer disclosure by the assessee during the course of assessment proceedings. He, further contended that non-disclosure into return of income was a bona fide mistake. He relied upon the judgment of the Hon’ble Supreme Court rendered in the case of CIT vs. Reliance Petro Products Pvt. Ltd. 322 ITR 158 to buttress this argument. He further submitted that the notice u/s 271(1)(c) of the Act is defective since it does not specify the charge. On the contrary ld. Departmental Representative supported the orders of the authorities below. He reiterated the submissions as made in the written submissions.
We have heard the rival contention perused the material available on record and gone through the orders of the authorities below. The undisputed fact in this case are that during the year under appeal, the assessed had transferred her share into a capital asset and did not disclose the capital gain arising there from while filing the return of income. The main contention of the ld. Counsel for the assessee is that the transaction was not detected by the revenue, it was volunteer disclosure of the assessee during the assessment proceedings. If this contention of the assessee is accepted it would set a wrong precedence as every assessee would take such plea. We, therefore, reject the same. Another argument of the Ld. Counsel for the assessee is that the AO has not specified the charge. We have perused the notice dated 20.12.2012 issued u/s 274 read with section 271(1)(c) of the Act. The relevance contains to the same are reproduced as paper book page 5 reads as under :- “have concealed the particulars of your income and have furnished inaccurate particulars of such income.”
From the above, it is evident that the AO has charged the assessee for twin defaults. Under the facts of the present case, same is rightly done as the assessee has concealed the income arose out of transfer of capital asset and failed to disclose the capital gain in its return of income that tantamount of furnishing of inaccurate particulars of income. We, therefore, do not see any infirmity into the order of the authorities below. The grounds raised in this appeal are dismissed. Now we take up to assessment year 2010-11
The assessee has raised following grounds of appeal :- 1. “ That the Ld. CIT(A) erred on facts and circumstances of the case and in law in brushing aside the legal proposition that the revised computation cannot be ignored with reference to sections 139(1), 139(4) and 139(5) of I.T. Act on technicalities.
2. That the Ld. CIT(A) also erred in law and on facts in over ruling/over looking various supportive judicial pronouncements in a summary, cursory and cryptic manner without legally valid reasons/ comments.
3. That the Ld. CIT(A) further erred in law and on facts in discarding the genuine and reasonable plea of the appellant, having zero knowledge of complicated Tax law, that the information regarding sale of property was not elicited at the time of preparation of return by erstwhile Ld. Counsel/ Chartered Accountant.
4. That in doing so, the Ld. CIT(A) failed to appreciate that there was no mal intention in withholding the said information, as its disclosure would have enabled the appellant to claim exemption from capital gain tax as per law, in the return itself.
5. That without prejudice to above, Ld. CIT(A) also erred in law and on facts in ignoring the serious violation of audi- alterm rules and contravention of provisions of section 274(1) of I.T. Act by the Ld. A.O, even though it was vehemently agitated during appellate proceedings.
6. The likewise, the Ld. CIT(A) erred in law and on facts in brushing aside the failure on the part of Ld. A.O to record his satisfaction, a prerequisite for initiation of penalty proceeding in the assessment order.
7. That in view of above glaring legal lapses/ lacunea, the impugned first appellate order based on illogical and unreasonable grounds is liable to be quashed in the interest of equity and natural justice.”
At the outset, the respective ld. Representatives of the parties have adopted the same arguments as were addressed in . We have considered the rival contentions, since the facts and the grounds are identical as in . We have decided the identical grounds of appeal
in by holding as under :- “7. We have heard the rival contention perused the material available on record and gone through the orders of the authorities below. The undisputed fact in this case are that during the year under appeal, the assessed had transferred her share into a capital asset and did not disclose the capital gain arising there from while filing the return of income. The main contention of the ld. Counsel for the assessee is that the transaction was not detected by the revenue, it was volunteer disclosure of the assessee during the assessment proceedings. If this contention of the assessee is accepted it would set a wrong precedence as every assessee would take such plea. We, therefore, reject the same. Another argument of the Ld. Counsel for the assessee is that the AO has not specified the charge. We have perused the notice dated 20.12.2012 issued u/s 274 read with section 271(1)(c) of the Act. The relevance contains to the same are reproduced as paper book page 5 reads as under :- “have concealed the particulars of your income and have furnished inaccurate particulars of such income.”
8. From the above, it is evident that the AO has charged the assessee for twin defaults. Under the facts of the present case, same is rightly done as the assessee has concealed the income arose out of transfer of capital asset and failed to disclose the capital gain in its return of income that tantamount of furnishing of inaccurate particulars of income. We, therefore, do not see any infirmity into the order of of the authorities below. The grounds raised in this appeal are dismissed.”
For the same reasoning the grounds raised in this appeal are also dismissed. 11. In the result, appeal of the assessee in and are dismissed. (Order Pronounced in the Open Court on 23/02/2018).