CHANDRAKANT B. SHAH,MUMBAI vs. ACIT 15(2), MUMBAI

This is an appeal filed by the assessee challenging the order of ld.CIT(A) -26, Mumbai dated 9.5.2014 for the assessment year 2009-10.

Despite service of notice none appeared on behalf of the assessee, therefore, we proceed to decide the appeal ex-parte in absence of the assessee after hearing the ld.DR and on perusal of the record available before us.

Facts of the case are that the assessee filed return of income on 30.7.2009 declaring a total income of Rs.1,37,47,790/-. The income assessed under section 143(3) of the Act vide order dated 7.12.2011 at Rs.1,49,40,190/-. The assessee claimed deduction under section 54F of the Income Tax Act, 1961 qua the gain on sale of land to the tune of Rs.96,65,000/- out of total Long term capital gains of Rs.2,22,65,775/- to be invested in residential flat in future. The said gain was apart from claiming deduction u/s 54F was invested but the AO during the course of assessment proceedings found that the deduction as claimed under section 54F of the Act was wrongly computed and accordingly recalculated the administrative deduction u/s 54F at Rs.81,72,595/- as given at page No.2 of the assessment order and the AO has initiated penalty proceedings under section 271(1)( c ) of the Act for furnishing inaccurate particulars of income and concealment of income and notice under section 271(1)( c ) of the Act dated 7.12.2011 was issued to the assessee which was replied by written submissions dated 19.1.2012, wherein the assessee submitted that the claim under section 54F was due to “purely technical in nature and unintentional” and the assessee himself agreed to such a mistake and 3 I T A N o . 4 9 7 4 / Mu m/ 1 4 therefore no penalty could be levied. The AO finding no merits in the contentions of the assessee and rejected the same and levied penalty on the difference of amount of Rs.14,92,405/- by holding that the assessee has concealed inaccurate particulars of income and to that extent imposed penalty 100% of the tax sought to be evaded of Rs.3,38,179/-. Aggrieved by the order of AO, the assessee preferred an appeal before the ld. CIT(A) who also confirmed the action of the AO after considering the details of material and relevant case law by observing and holding as under : “5.5 Adverting to the present case, it is not in dispute that the assessee has claimed incorrect deduction u/s 54F which was not tenable. Hence, in view of the decision in Reliance Petroproduct P. Ltd., it is without doubt clear the details supplied in the return were nor accurate nor exactly correct, not according to the truth. In the case of Zoom Communication Ltd 337 ITR 510, the Hon’ble Delhi High Court has after considering the decision of the Hon'ble Supreme Court in the case of Reliance Petroproducts Pvt. Ltd. held as follows: "The Court cannot overlook the fact that only a small percentage of the IT returns are picked up for scrutiny. If the assessee makes a claim which is not only incorrect in low but is also wholly without any basis and the explanation furnished by him for making such a claim is not found to be bonafide, it would be difficult to say that he would still not be liable to penalty U/s.271 (1)(c). If one takes the view that a claim which is wholly untenable in law and has absolutely no foundation on which it could be made, the assessee would not be liable to imposition of penalty, even if he was not acting bonafide while making a claim of this nature, that would give a license to unscrupulous assessees to make wholly untenable and unsustainable claims without there being any basis for making them, in the hope that their return would not be picked up for scrutiny and they would be 4 I T A N o . 4 9 7 4 / Mu m/ 1 4 assessed on the basis of self assessment u/s.143(1) and even if their case selected for scrutiny, they can get away merely by payment the tax, which in any case was payable by them. The consequence would be that the persons who mode claims of this nature, actuated by a malafide intention to evade tax otherwise payable by them would get away without paying the tax legally payable by them, if their cases are not picked up for scrutiny. This would take away the deterrent effect, which these penalty provisions in the Act have”

We have heard the contentions of the ld.DR and perused the material placed before us including the orders of authorities below. We find that the assessee has not attended the hearing despite notice of hearing sent through RPAD on 11.5.2016, 30.5.2016, 2.8.2016, 17.10.2016 and therefore, the appeal of the assessee is being disposed of ex-pare on merit after considering the material available before us. We find that the ld. CIT(A) has examined the issue in detailed and held that the assessee has furnished inaccurate particulars of income by claiming wrong deduction under section 54F of the Act after relying on the ratio laid down by the Hon’ble Supreme Court in the case of CIT V/s Reliance Petroproduct Pvt.Ltd -322 ITR 158 (SC) and the decision of Hon’ble Delhi High Court in the case of Zoom Communications P Ltd (2010) 191 Taxmann 179 which is incorrect.. In our view, the ld.CIT(A) has passed reasoned order which is not required to be disturbed or interfered with and accordingly, we are inclined to upheld the order of ld.CIT(A) and thereby dismiss the appeal of the assessee.