SHRI ASHWINBHAI KANTILAL PARIKH,AHMEDABAD vs. INCOME TAX OFFICER, WARD-14(2), AHMEDABAD

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ITA 927/AHD/2016Status: DisposedITAT Ahmedabad07 September 2017AY 2011-126 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal allowed the assessee's appeal. The Tribunal noted that the assessee had filed a revised computation of income, which included the interest income, before the framing of the regular assessment. Citing the Supreme Court decision in Price Waterhouse Coopers Pvt. Ltd. vs. CIT, the Tribunal held that penalty cannot be imposed when the assessee commits a 'silly mistake' and files a revised return before the regular assessment is framed. The Tribunal also observed that the Assessing Officer herself had made mistakes, which were rectified under Section 154, implying that the assessee should have received the benefit of such rectifications. The Tribunal found that the penalty was not sustainable in these circumstances. The issue regarding the disallowance of transfer fees and deduction under Section 24B, and the claim for improvement expenses, was also implicitly addressed by the allowance of the appeal, suggesting these were part of the overall circumstances leading to the penalty being set aside.

What were the facts?

The assessee, Shri Ashwinbhai Kantilal Parikh, filed an appeal against the order of the CIT(A)-5, Ahmedabad, dated 10/02/2016, for Assessment Year 2011-12. The appeal challenges the confirmation of a penalty of Rs. 50,280 levied under Section 271(1)(c) of the Income Tax Act, 1961. The penalty arose from the assessee's sale of inherited property, where the initial claim for cost of acquisition as on 01/04/1981 was Rs. 11,72,175. Following a reference to the AVO, the fair market value was determined at Rs. 7,69,801, leading to an addition of Rs. 2,21,477 as long-term capital gain. Penalty proceedings were also initiated for not declaring short-term capital gain of Rs. 24,646 and for undeclared interest income of Rs. 80,565 from savings bank accounts.

What were the issues?

1. Whether the penalty of Rs. 50,280 imposed under Section 271(1)(c) of the Income Tax Act, 1961, for concealment of income or furnishing inaccurate particulars of income is sustainable. Assessee's Contention: The assessee argued that the penalty should not be confirmed. They relied on the Supreme Court decision in Price Waterhouse Coopers Pvt. Ltd. vs. CIT (2012) 348 ITR 306 (SC), stating that penalty cannot be imposed for a 'silly mistake'. The assessee also submitted that they filed a revised computation of income, including the undeclared interest income, before the framing of the regular assessment. Furthermore, the assessee contended that the Assessing Officer (AO) made a mistake by not allowing certain claims, which was later rectified through an order under Section 154, and that the AO should have allowed improvement expenses claimed, without issuing a show-cause notice. Revenue's Contention: The revenue, through the Assessing Officer and confirmed by the CIT(A), initiated penalty proceedings on the grounds that the assessee had not declared the full long-term capital gain, short-term capital gain, and interest income in their original return, thereby filing inaccurate particulars of income with the intent to suppress income.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 54,Section 111A,Section 143(2),Section 154,Section 55A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, SMC

Before: SHRIN.K. BILLAIYA & SHRI MAHAVIR PRASAD

For Respondent: Shri Raj Deep Singh, Sr.D.R
Hearing: 30/08/2017Pronounced: 07/09/2017

आदेश / O R D E R

PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : This is an appeal by the assessee against the order of the Commissioner of Income Tax(Appeals)-5, Ashram Road, Ahmedabad dated 10/02/2016 for the Assessment Year (AY) 2011-12, on the following Grounds: The learned CIT(A) has erred in confirming the penalty of Rs.50,280/- u/s.271(1)(c) of the Income Tax Act, 1961.

ITA No. 927/Ahd/2016 Shri Ashwinbhai Kantilal Parikh vs. ITO Asst.Year –2011-12. - 2 - 2. The relevant facts as culled out from the materials on record are as under:- During the period under consideration, assessee jointly with his two brothers, sold the house property vide the sale document registered with the sub-registrar Vadaj, Ahmedabad-2 for the total sale consideration of Rs.1,19,28,000/-.

During the assessment proceeding Assessee was asked to submit working of capital gain resulting the sale transaction of house property made by him, which was submitted by assessee vide submission dated 05/12/2012. As per the submission, it was submitted by assessee that the property which was sold during the year, was inherited from his father. As the property was bought by his father before the year 1981-82, assessee has claimed cost of acquisition at Rs.11,72,175/- as on 01/04/1981. Assessee has also submitted the valuation report from approved valuer for valuation of property. Taking the cost of acquisition at Rs.11,72,175/- as on 01/04/1981, assessee has worked out the quantum of long term capital gain arising out of the sale of said property at Rs.11,97,945/-(for his share at 33.33%). Assessee has also purchased a new residential flat on 30/07/2009 for the total sale consideration of Rs.17,25,001/-. Assessee has also paid Rs.1,02,000/- as stamp duty and registration charges while purchasing the new flat. By purchasing the new residential flat within time limit as per provision of section 54 of the I.T. Act, assessee has claimed exemption u/s.54 of the I.T. Act.

ITA No. 927/Ahd/2016 Shri Ashwinbhai Kantilal Parikh vs. ITO Asst.Year –2011-12. - 3 - To ascertain the fair market value of the sold property as on 01/04/1981, reference for valuation of the property as on 01/04/1981, u/s.55A of the I.T. Act, was made to AVO, A’bad on 08/11/2013 valuation report of the property was received and the fair market value for the sold property was valued at Rs.7,69,801/-. Considering the valuation report from AVO, A’bad, assessee was asked to submit revised calculation of capital gain, which was submitted by assessee vide his submission dated 05/02/2014.

The long term capital gain workout Rs.2,21,477/- is added to his total income for Asst. Year 2011-12. As the long term capital gain, which was not declared in total income for A.Y. 2011-12 while filing return by assessee. In view of the aforesaid fact ld. AO initiated penalty proceedings u/s.271(1)(c) of the Act for filing inaccurate particulars of income with the view of suppress the income.

During the assessment proceeding, details of demat account held by assessee for period under consideration were called for, which were submitted by assessee, which is kept on record. Assessee has also offered the short term capital gain amounting to Rs.24,646/- for tax u/s.111A of the I.T. Act vide his letter dated 05/02/2014 filed with the ld. AO. Since assessee has not offered the short term capital gain amounting to Rs.24,646/- at the time of filing return of income and same was offered for tax after receiving notice u/s.143(2) of the Act. For this also penalty proceedings u/s.271(1)(c) of the Act were initiated.

ITA No. 927/Ahd/2016 Shri Ashwinbhai Kantilal Parikh vs. ITO Asst.Year –2011-12. - 4 -

On verification of bank statement in the name of assessee following details were gathered. Bank Account No. Bank name with branch Amount of interest credited during F.Amount of interest credited during F.Y.2010-11 10090570195 SBI, Naranpura Branch, A’bad Rs.78,155/- 30029577493 SBI, Naranpura Branch, A’bad Rs. 7,587/- 003010100370158 AXIS Bank, Law Garden, A’bad Rs. 847/- 0981101062601 Canara Bank, Naranpura, A’bad Rs.20,074/- 07950100000317 BOB, Naranpura, A’bad Rs. 763/-

From the details, it was found that assessee has received Rs.1,07,426/- as interest on saving bank account during F.Y.2010-11. Whereas assessee has declared only 26,861/- as bank interest while filing the return. According the amount of Rs.80,565/- which was not including in the total income for Asst. Year 2011-12 while filing return by assessee. Assessee has offered the amount of Rs.80,565/- received as interest as income from other sources vide his submission dated 05/02/2014.

Since assessee has not offered the interest income amount to Rs.80,565/- at the time of filling return of income and same was offered for tax after receiving notice u/s.143(2) of the Act. In this case, penalty was also levied.

The original assessment was made by disallowing Rs.2,21,477/- under the head of LTCG vide order dated 13/02/2014. During the course of assessment proceedings the appellant had claimed Rs.30,000/- transfer Fees and deduction of Rs.36,173/- u/s.24B, the same was not allowed by the AO while passing the assessment order u/s.143(3),

ITA No. 927/Ahd/2016 Shri Ashwinbhai Kantilal Parikh vs. ITO Asst.Year –2011-12. - 5 - thereafter the assessing officer relied that she had made a mistake by not allowing such claim she herself passed the order u/s.154, in the said manner she should had allowed the improvement expenses which was claimed by the assessee at the time of assessment proceedings which was fully established by the appellant before the valuation authority and this facts was also brought to the notice of the income tax officer by the valuation officer still however the income tax officer in her assessment order she had not made any comments any clarification, explanation or any reason given for not allowing such claims and no any show-cause notice was issued to the appellant.

3.

Against the said order assessee preferred first statutory appeal before the learned CIT(A). Learned CIT(A) dismissed the appeal of the assessee.

4.

We have gone through the relevant record and impugned order. In our opinion if she is in that opinion no to allow she should disclose her mind for such action hence it is clearly under the head of mistake apparent on record and appellant entitle to get the benefit of section 154, when the mistake done by the ITO herself she pass the order u/s.154 that benefit should have been given to the assessee.

The facts remains that the assessee filed revised computation of income including the above interest income before framing of the regular assessment. We draw supports from the case of Price Waterhuse Coopers Pvt. Ltd. vs. CIT(2012) 348 ITR 306 (SC) squarely apply in facts of the

ITA No. 927/Ahd/2016 Shri Ashwinbhai Kantilal Parikh vs. ITO Asst.Year –2011-12. - 6 - instant case wherein the said assessee had committed a silly mistake. In that case penalty cannot be imposed. Moreover, assessee has also filed revised return before the framing of the regular assessment. In our considered opinion, in such case penalty cannot be confirmed. Therefore, we allow Assessee’s appeal.

5.

In the result, appeal filed by the assessee is allowed. This Order pronounced in Open Court on 07/09/2017

Sd/- Sd/- एन.के. �ब�लैया महावीर �साद (लेखा सद�य) (�या�यक सद�य) ( MAHAVIR PRASAD ) ( N.K. BILLAIYA ) ACCOUNTANT MEMBER JUDICIAL MEMBER

Ahmedabad; Dated 07/09/2017 Priti yadav, Sr. PS 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)-5, 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 True Copy

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