Kirit Premraj Jain, Ahmedabad vs Assessee

आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद Ûयायपीठ ''C'', अहमदाबाद ।

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, "C" BENCH

सव[ौी ौी जी.

जी.सी.

सी.गुƯा, माननीय उपाÚय¢, उपाÚय¢, एवं अिनल चतुवद ȶ ȣ, ȣ, लेखा सदःय के सम¢ ।

BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER)

ITA No.103/Ahd/2011 [Asstt.Year :1996-1997]

Shri Kirti Premraj Jain बनाम/Vs. ACIT, Cir.2(1) 1, Samsamarpan Society Baroda.

Vasna Road, Baroda.

PAN : AAACE 4224 B

(अपीलाथȸ / Appellant) (ू×यथȸ / Respondent)

िनधा[ǐरती कȧ ओर से/ : Assessee by Shri Anil R. Shah राजःव कȧ ओर से/ : Revenue by Shri M.K. Singh, Sr.DR सुनवाई कȧ तारȣख/ : Date of Hearing 10th December, 2014

घोषणा कȧ तारȣख/ : Date of Pronouncement 09-01-2015

आदे श / O R D E R

PER G.C. GUPTA, VICE-PRESIDENT: This appeal by the assessee for the Asstt.Year 1996-97 is directed against the order of the CIT(A).

2. Only ground of the appeal of the assessee in merit is as under:

"1. The CIT(A) has erred in confirming levy of penalty of Rs.2,40,000/- which was levied by the AO for bogus and alleged cash credit."

ITA No.103/Ahd/2011 3. The learned counsel for the assessee submitted that the penalty under section 271(1)(c) of the Act was levied on the amounts of Rs.1.95 lakhs and Rs.4.04 lakhs received from Sanjay Dhumal and Arvind Nopani respectively during the relevant Asstt.Year 1996-97. He submitted that these two amounts were received by the assessee for sale of land as advance and final sale deed was executed on 8.8.1996 relevant to the Asstt.Year 1997-98, and the assessee himself voluntarily filed its income- tax return of A.Y.1997-98 on 28.5.1998 and declared capital gain on sale of the said land at Rs.1,84,415/- after claiming cost of acquisition thereof. He submitted that it was by mistake that the assessee shown two amounts in question as deposits in the name of these two persons and the addition made under section 68 in A.Y.1996-97 was confirmed upto the level of Tribunal, since, the assessee could not represent its case due to adverse circumstances beyond its control, and ex parte order of the assessment and CIT(A)'s order as well as that of the Tribunal was passed. He submitted that the assessee has declared capital gain for A.Y.1997-98 and the same amount has been taxed for A.Y.1997-98, amounting to double taxation not permissible under the law, and at least the assessee should not be penalized under section 271(1)(c) of the Act.

4. The learned DR has opposed the submissions of the learned counsel for the assessee. He submitted that the assessee was totally non- cooperative in assessment and penalty proceedings, and all through the litigation ex parte order was passed by the authorities. He submitted that addition has already been confirmed by the appellate authority and the assessee now cannot plead that the same has been taxed twice under the head long term capital gain in subsequent A.Y.1997-98. He relied on the orders of the AO and the CIT(A).

-2- ITA No.103/Ahd/2011 5. We have considered rival submissions and perused the orders of the AO and the CIT(A). We find that only issue in this appeal is regarding penalty under section 271(1)(c) of the Act imposed on the amount credited of Rs.1.95 lakhs of Sanjay Dhumal and Rs.4.04 lakhs of Arvind Nopani. The assessee has shown that it has received the advance money from these parties, but the actual sale deed was registered on 8.8.1996 i.e. in subsequent year, and accordingly, the long term capital gain amounting to Rs.1,84,415/- was offered for taxation voluntarily by the assessee by filing the IT return on 28.5.1998 for the subsequent A.Y.1997-98. We find that merely because the addition has been confirmed due to non-cooperation of the assessee, for some reasons or other, by passing ex parte assessment as well as appellate order, it cannot be said that the assessee should be visited with penalty under section 271(1)(c) of the Act also. It is well establish that assessment and penalty proceedings are independent to each other and the assessee would be well within its right to plead its case during the penalty proceedings also. Since, the assessee has declared the sale proceeds and resulting long term capital gains in subsequent A.Y.1997-98, we hold that the charge of concealment of income or filing of inaccurate particulars of income could not be established in this case, as the assessee's conduct and explanation in this regard was bona fide, and accordingly, the penalty under section 271(1)(c) of the Act is cancelled and the ground no.1 (on merit) is allowed.

6. In the result, appeal of the assessee is allowed. Order pronounced in Open Court on the date mentioned hereinabove.

Sd/- Sd/- अिनल चतुवȶदȣ / ANIL CHATURVEDI) (अिनल (जी. जी.सी. सी.गुƯा/G.C. GUPTA) लेखा सदःय /ACCOUNTANT MEMBER उपाÚय¢ /VICE-PRESIDENT

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