SHRI NANUBHAI GOVINDBHI AHIR,SURAT vs. INCOME TAX OFFICER, WARD - 2(3)(3), SURAT

Assessee by Shri Sapnesh Sheth, C.A. Department by Shri Vinod Kumar Sr.DR Date of Institution of Appeal 19/04/2023 Date of hearing 04/07/2023 Date of pronouncement 04/07/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of learned National Faceless Appeal Centre, Delhi (in short, the ld. NFAC)/learned Commissioner of Income Tax, (Appeals) [in short the ld. CIT(A)] dated 06/03/2022 for the Assessment Year (AY) 2012-13 wherein the assessee has raised following grounds of appeal: “(1) On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals), NFAC has erred in confirming the action of assessing officer in imposing penalty u/s 271(1)(c) of the I.t. Act, 1961 of Rs. 28,63,562/- although addition on which penalty is imposed stands deleted by the Hon’ble Tribunal. (2) Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of appeal.”

2. At the outset of hearing, the learned Authorised Representative (ld. AR) of the assessee submits that the additions on the basis of which penalty Nanubhai Govindbhai Ahir Vs ITO under Section 271(1)(c) was levied by the Assessing Officer has already been deleted by the Tribunal in appeal against quantum assessment in dated 19/05/2021, therefore, the penalty order would not survive. The ld. AR of the assessee also furnished copy of decision of Tribunal in ITA No. 2289/Ahd/2016 dated 19/05/2021.

3. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue supported the order of ld. CIT(A).

4. We have considered the submissions of both the parties and find that the assessing officer while passing assessment order on 24.03.2015 made addition of long term capital gain of Rs. 1.48 crore. The addition was made on the basis of report of district valuation officer (DVO). The DVO suggested the value of land @ Rs. 63.50/- per square meter, against the value adopted by the assesse on the basis of report of government approved valuer @ Rs. 290/- per square meter. The assessee has shown long term capital gain of Rs. 9,40,565/-. The Assessing Officer recomputed long term capital gain of Rs. 1.48 crore thereby addition of Rs. 1.39 crore of long term capital gain was made. The Assessing Officer levied the penalty of Rs. 28,63,562/- being 100% of tax sought to be evaded, vide order dated 19/03/2018. We further find that in appeal in quantum assessment, the addition of long term capital gain has been deleted by the combination of this Bench in ITA No. 2289/Ahd/2016 dated

Nanubhai Govindbhai Ahir Vs ITO 19/05/2021, therefore, penalty would not survive. In this result, grounds of appeal raised by assessee are allowed.

5. In the result, this appeal of assessee is allowed. Order pronounced on 04/07/2023 in open court.