Anita Beniwal , Alwar vs Assessee

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

vk;dj vihy la-@ITA No. 743/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2008-09

Anita Beniwal cuke Income Tax Officer, 316, Basant Vihar, Scheme No. 3, Vs. Ward 1(4), Alwar. Alwar.

LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AGGPB 3319 M vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Neena Jeph (JCIT)

lquokbZ dh rkjh[k@ Date of Hearing : 21/05/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 05/06/2015

vkns'k@ ORDER

PER: T.R. MEENA, A.M.

This is an appeal filed by the assessee against the order dated

25/06/2012 passed by the learned CIT(A), Alwar for A.Y. 2008-09. The

sole ground of appeal is as under:-

"1 Under the facts and circumstances of the case, the learned Income Tax Officer, Ward 1(4), Alwar has erred in imposing penalty U/s 271(1)(c) of the 2 ITA 743/JP/2012_ Anita Beniwal Vs. ITO

Income Tax Act of Rs. 68116/- and sustained by the Ld. Commissioner of Income Tax (Appeals), deserve to be deleted."

2. The sole ground of appeal is against confirming the imposition

penalty U/s 271(1)(c) of the Act at Rs. 68,116/-. The assessee filed

return on 21/12/2009 at Rs. 39,930/-. During the year under

consideration, the assessee had sold industrial plot No. H-473-474, MIA,

Alwar on 21/06/2007 at Rs. 8 lacs whereas DLC value was decided by

the Registrar of Stamp at Rs. 12,35,730/-. The assessee had shown

capital gain on Rs. 8 lacs not as per Section 50C of the Income Tax Act,

1961 (in short the Act) at Rs. 12,35,730/-. Therefore, there was a short

assessment of capital gain by Rs. 4,35,730/-. The Assessing Officer

after recording the reasons U/s 147 on 27/3/2010 had reopened the

case and issue notice U/s 148 of the Act. The assessee during the

course of assessment proceedings had filed the revised computation of

income by considering the sale value of industrial plot at Rs.

12,35,730/- U/s 50C of the Act and paid the self assessment tax at Rs.

98,550/- on 19/3/2010 and also revised return on 25/3/2010. The

Assessing Officer initiated the penalty proceedings U/s 271(1)(c) of the

Act for furnishing inaccurate particulars of income and concealment of

income.

3 ITA 743/JP/2012_ Anita Beniwal Vs. ITO

At the time of imposing penalty U/s 271(1)(c), the Assessing

Officer again gave the reasonable opportunity of being heard. The

assessee also filed reply, it was claimed by her that the assessee herself

had disclosed the capital given as per Section 50C of the Act and paid

the tax on 19/3/2010. The returned income had been accepted as such,

therefore, there was no concealment U/s 271(1)(c) as the assessee had

suo moto disclosed the income. There was bonafide belief that the

assessee had not concealed any particulars of income and not furnished

any inaccurate particulars of income. The Assessing Officer after relying

on the decision of the Hon'ble Rajasthan High Court in the case of CIT

Vs. Mohd. Mohtram Farooqi 259 ITR 132 (Raj) and Badri Prasad Om

Prakash Vs. CIT 163 ITR 440 (Raj) wherein surrendered after seizure

cannot be said voluntarily and filed revised return after concealment

were detected. The addition made by the Assessing Officer remained

concealed income. Accordingly, he imposed penalty at Rs. 68,116/-,

which is 100% of tax sought to be evaded on concealed income.

3. Being aggrieved by the order of the learned Assessing Officer, the

assessee carried the matter before the learned CIT(A), who had

confirmed the addition by observing as under:-

4 ITA 743/JP/2012_ Anita Beniwal Vs. ITO

"(g) I find that the plea taken by the ld. AR that the assessee was not agreed to the value adopted by the registrar and thought of referring to the valuation officer for valuation of capital asset is not borne out by the evidence on record since in the computation of total income, as per the original return filed, the appellant has clearly stated the value u/s 50C at Rs. 8 lacs as against the value determined at Rs. 1235730/- for stamp duty purpose by the registrar. Further, the appellant has not given any note with the return of income regarding its intention to dispute the valuation of the stamp authority.

(h) I find that the plea of the appellant, that it had revised the return suo moto and was not liable for penalty, is based on wrong and incomplete presentation of facts in view of the observation made in para (b) & (c) above. Further it has been noted by the ld. A.O. in the penalty order that the assessee paid tax on long term capital on 19/03/2010 after the concealment was detected by A.O. by way of issue of query letter dated 29/01/2010. The assessee did not mention any thing in respect of concealment of income in its reply filed on 10/02/2010. Therefore, the deposit of tax on capital gains before issue of notice u/s 148 of the Act will not mean that there is concealment of income u/s 271(1)(c) of the 5 ITA 743/JP/2012_ Anita Beniwal Vs. ITO

Act. The assessee has filed its second return on 25/03/2010 in response to the notice U/s 148 dated 24/03/2010 which was served on 24/03/2010 and not on 25/03/2010 as stated by the ld. AR. This second return filed on 25/03/2010 cannot be treated as a revised return within the meaning of section 139(5) of the Act as the appellant had not filed its original return on time as per section 139(1) of the Act. In fact, on the said return itself, it has been mentioned 'in response to notice u/s 148'.

(j) I find that the appellant had a motive to conceal its income as in the original return it had to pay NIL tax as against the tax of Rs. 98850/- paid subsequently after computing the capital gain as per the value u/s 50C at Rs. 1235730/-.

(k) I have considered the cases relied upon by the ld. AR.

In the case reported as CIT Vs. Suresh Chand Mittal 251 ITR 9 (SC) and CIT Vs. Carreers Education and Infotech Pvt. Ltd. 336 ITR 257 (P&H), the penalty U/s 271(1)(c) was deleted for the reason that the revenue did not discharge its burden to prove that there was concealment of income by the assessee.

In this regard reference is made to the order of Hon'ble Punjab & Haryana High Court dated 6 ITA 743/JP/2012_ Anita Beniwal Vs. ITO

22/07/2009 in the case of Prem Pal Gandhi Vs. CIT reported as 335 ITR 23 in which the appeal of the assessee has been dismissed after considering a number of decisions on this issue including the judgment reported as 251 ITR 9 (SC).

In that case the Tribunal had maintained the order of penalty by holding that the question of concealment of income or furnishing of inaccurate particulars of income for the purpose of section 271(1)(c) of the IT Act is to be determined with reference to the original return. Even if the income is surrendered in the revised return, the assessee still have to explain why the income was not shown and why inaccurate particulars of income were furnished in the original return.

I find that in the case of appellant, inaccurate particulars has been filed in the original return by mentioning the value u/s 50C at Rs. 8 lacs instead of Rs. 1235730/- in computation of capital gain as a result of which income under the head capital gains of (475658-39928) Rs. 435730/- was concealed. The appellant has not been able to lead any evidence to prove that lower income was shown in original return merely as a result of inadvertent mistake or omission. Thus, relying on the decision of Hon'ble Punjab & Haryana High Court in the case of Prem Pal Gandhi Vs. CIT reported as 335 ITR 23 and in view of the above 7 ITA 743/JP/2012_ Anita Beniwal Vs. ITO

discussion, I am of the considered opinion that the ld. A.O. has rightly imposed the penalty for concealment of income u/s 271(1)(c) of the Act at Rs. 68,116/- which is also the minimum penalty leviable. Accordingly, the levy of penalty at Rs. 68,116/- is upheld."

4. Now the assessee is in appeal before us. The ld AR for the

assessee has submitted that the issue in this case is whether penalty

U/s 271(1)(c) can be imposed where the income under the head capital

gain is assessed U/s 50C by deeming the value assessed by the stamp

authorities as the full value of consideration for the purpose of section

48. This issue is well settled by the various courts wherein it has been

held that penalty U/s 271(1)(c) of the Act is not leviable where income

is assessed on the basis of deemed consideration u/s 50C as revenue

has failed to produce any evidence that assessee actually receives more

than the amount shown to have been received by the assessee. He

relied on the decision in the case of Chimanlal Manilal Patel Vs. ACIT 33

CCH 647 (Ahd.)(Trib.) wherein identical penalty was imposed on the

basis of difference in capital gain U/s 50C of the Act and the Coordinate

Ahmadabad Bench has decided that there was no conclusive proof with

the revenue that sale consideration as per sale agreement was incorrect

and wrong. Therefore, penalty was deleted. In case of CIT Vs. Madan 8 ITA 743/JP/2012_ Anita Beniwal Vs. ITO

Teaters Ltd. 85 CCH 70 (Kol) (HC) wherein the identical issue has been

considered by the Hon'ble Calcutta High Court and held that revenue

had failed to produce any iota of evidence that the assessee actually

received one paise more than amount shown to have been received by

him. Similar view has also been expressed in the case of Harish

Voovaya Shetty & Ors. Vs. ITO (Mum) (Trib) ITA No. 6383/Mum/2012

dt. 03/07/2014 and prayed to delete the penalty.

5. At the outset, the Ld. DR supported the order of the lower

authorities.

6. We have heard the rival contentions of both the parties and

perused the material available on the record. The assessee had shown

sale consideration at Rs. 8 lacs whereas as per Section 50C of the Act,

the Stamp Authority has assessed the value of property at Rs.

12,35,730/-, there was difference at Rs. 4,75,658/- in the capital gain,

which has been accepted by the assessee during the course of

assessment proceedings. The case law referred by the assessee are

squarely applicable. In this case also, there is no evidence with the

revenue to prove that the assessee has received much more than 9 ITA 743/JP/2012_ Anita Beniwal Vs. ITO

reflected in the return. The addition was on account of deeming

provision, therefore, we delete the penalty confirmed by the ld CIT(A).

7. In the result, the assessee's appeal is allowed.

Order pronounced in the open court on 05/06/2015.

Sd/- Sd/- ¼vkj-ih-rksykuh½ ¼Vh-vkj-ehuk½ (R.P.Tolani) (T.R. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur

fnukad@Dated:- 05th June, 2015 *Ranjan

vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Anita Beniwal, Alwar.

2. izR;FkhZ@ The Respondent- The ITO, Ward 1(4), Alwar.

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr¼vihy½@The CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (ITA No. 743/JP/2012) vkns'kkuqlkj@ By order,

lgk;d iathdkj@Asst. Registrar