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Income Tax Appellate Tribunal, “ A ” BENCH, AHMEDABAD
Before: SHRI S.S. GODARA & SHRI PRADIP KUMAR KEDIA
आदेश / O R D E R PER PRADIP KUMAR KEDIA - AM: The captioned appeal filed at the instance of the assessee is against the order of the Commissioner of Income Tax(Appeals)-III, Baroda [CIT(A) in short] dated 29/09/2014 relevant to Assessment Year (AY) 2009-10 upholding the Assessing Officer’s action imposing penalty of Rs.5,16,250/- in proceedings under s.271(1)(c) of the Income Tax Act, 1961.
ITA No. 2937/Ahd/2014 Shri Heman A.Patel vs. ACIT Asst.Year – 2010-11 - 2 - 2. Briefly stated, the return of the assessee was subjected to scrutiny assessment in the AY 2010-11. In the course of the scrutiny assessment, the Assessing Officer (AO) observed that certain expenses in the nature of Bore expenses and Fencing expenses claimed under the Long Term Capital Gains (LTCGs) could not be supported. Similarly, brokerage expenses on sale of land also could not be corroborated. The capital gains was accordingly re-quantified after disallowance towards claim of such expenditure of varied nature. The penalty of Rs.5,16,250/- was imposed on the aforesaid aggregate disallowance of Rs.15,48,726/-.
The CIT(A) confirmed the aforesaid action of the AO in first appeal.
Aggrieved, the assessee knocked the door of the Tribunal.
None attended for the assessee. The matter is accordingly proceeded ex-parte.
With the assistance of the Ld.DR in the course of hearing, we find that assessee has claimed brokerage expenses of Rs.5,87,643/- and Rs.6,23,107/- being 2% of the sale cost. Likewise, Bore expenses of Rs.1,50,000/- was claimed and some expenses were claimed towards levelling & boundary wall expenses and fragmenting cost. We notice
ITA No. 2937/Ahd/2014 Shri Heman A.Patel vs. ACIT Asst.Year – 2010-11 - 3 - that the assessee has given submissions before the CIT(A) and pointed out that assessee had purchased the land in the year 2000 and after purchasing the land the same was put for agricultural purposes and accordingly bore expenses and boundary wall expenses, leveling & fragmenting were bound to incur. The brokerage expenses @ 2% was also in tune with the normal business practices. We find some merit in the contention of the assessee placed before the CIT(A) from the perspective of penalty proceedings. Considering the quantum of income of Rs.237.11 lakhs declared by the assessee and having regard to the averments made before the CIT(A), we find that the case of the assessee is not totally devoid of merit. Doubtful circumstances for exacting details do exist but are offset by mitigating circumstances in favour of assessee.
In the result, appeal of the assessee is allowed ex-parte. This Order pronounced in Open Court on 29/ 11 /2017
Sd/- Sd/- (एस.एस.गोदारा) (�द�प कुमार के�डया) �या�यक सद�य लेखा सद�य ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 29/ 11 /2017 ट�.सी.नायर, व.�न.स./T.C. NAIR, Sr. PS
ITA No. 2937/Ahd/2014 Shri Heman A.Patel vs. ACIT Asst.Year – 2010-11 - 4 -
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-II, Ahmedabad �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy//
उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation .. 28.11.17(dictation-pad 6-pages attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member …29.11.17 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S…………….. 5. Date on which the fair order is placed before the Dictating Member for pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S…….29.11.17 7. Date on which the file goes to the Bench Clerk…………………29.11.17 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………