Income Tax Appellate Tribunal - Delhi
Arun Kumar Gupta (Huf), Delhi vs Acit, New Delhi on 11 September, 2018
1 ITA No. 2990/Del/2015
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: 'G' NEW DELHI
BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER
AND
MS SUCHITRA KAMBLE, JUDICIAL MEMBER
ITA No. 2990/Del/2015 ( A.Y 2010-11)
Arun Kumar Gupta (HUF) Vs ACIT
2122, Bahadurgarh Road, Circle-39(1)
Sadar Bazar New Delhi
Delhi (RESPONDENT)
AAFHA4556G
(APPELLANT)
Appellant by Sh. S. P. Agarwal, CA
Respondent by Sh. Anoop Singh, Sr. DR
Date of Hearing 10.09.2018
Date of Pronouncement 11.09.2018
ORDER
PER SUCHITRA KAMBLE, JM
This appeal is filed by the assessee against the order dated 16/3/2015 passed by CIT(A)-XX, New Delhi for Assessment Year 2010-11.
2. The grounds of appeal are as under:-
"1. On the facts and in law Ld Commissioner of Income Tax (Appeals)-
XX, was not justified in dismissing appeal of the assessee.
2. On the facts and in circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) was not justified in confirming penalty u/s 271(1)(c) of I.T. Act, amounting to Rs.4,37,379/-, being 100% of the tax sought to be evaded.
3. On the facts and in circumstances of the case, Ld. Commissioner of 2 ITA No. 2990/Del/2015 Income Tax (Appeals) was not justified in not accepting the bona-fide explanations furnished by the assessee during assessment and penalty proceedings, regarding omission in the computation of income leading to inadvertent furnishing of "inaccurate particulars"
of income."
3. The assessee filed online return declaring income of Rs.25,46,504/-. The return was selected for scrutiny with notice u/s 143(2) dated 28.09.2011. In response to the notice the assessee initially filed reply submitting computation of income, audited balance sheets and tax audit report, etc. in paper form. Other notices u/s 142(1) dt.10.01.2012 and dt.31.12.2012, were issued. In response to these notices assessee filed a rectification application to rectify the intimation of assessed income u/s 143(1) by way of including long term capital gain of Rs. 19,45,055/- which was left out from inclusion in the original computation and return of income. The rectification letter was filed since, the time limit for filing revised return under the provisions of section 139(5), had expired. The amount of capital gain was already included in the balance sheet submitted earlier, but was left out from computation of capital gain while preparing return of income. During assessment proceedings another error in capital gain to the tune of Rs 1,78,144/- was discovered which was also offered for taxation. The assessee paid capital gain tax with interest suo moto and submitted the receipted challans before commencement of scrutiny assessment. The Capital Gain as computed by the assessee and offered for taxation were accepted by the Assessing Officer without pointing out any discrepancy. The Assessing Officer initiated penalty proceedings u/s 271(1)(c) of Income Tax Act and imposed penalty of Rs.4,37,379/-.
4. Being aggrieved by the assessee, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee.
5. The Ld. AR submitted that it is a genuine case of omission and bona fide mistake of not including the capital gains at the time of preparing computation and return of income, although the amounts were disclosed in the Balance 3 ITA No. 2990/Del/2015 Sheet, prepared in support of Return. The assessee rectified the mistake of non inclusion of Capital Gain in Computation by surrendering the Capital Gain and deposited the tax with interest before the Commencement of Scrutiny assessment. The Ld. AR relied upon the following case laws:
i. The Assistant Commissioner of Income Tax v. Ashok Raj Nath [2012] 19 ITR (Trib) (ITAT [Del] ii. The Commissioner of Income Tax v. Bhavinkumar M. Dagli [2015] 377 ITR 389 (Guj).
6. The Ld. DR submitted that the Assessing Officer rightly levied the penalty and the CIT(A) rightly sustained the penalty u/s 271(1) (c) of the Act, 1961.
7. We have heard both the parties and perused all relevant material available on record. It is pertinent to note that the assessee after receiving the notice u/s 143(2) filed revised computation after coming to the knowledge that the assessee has not included the capital gains at the time of calculating computation and filing return of income, although the amounts were disclosed in the balance sheet prepared in support of return. Thus, the assessee has admitted the mistake before the Assessing Officer could detect such omission. Thus, it is not a case of furnishing of inaccurate particulars or concealment of income before the Assessing Officer. Section 271 of the Act comes into picture when there is a failure to furnish returns or there is concealment of income or furnishing of inaccurate particulars before the Assessing Officer. But in the present case before the Assessing Officer, all the relevant facts were already available and the mistake has been rectified by the assessee prior to the mistake pointed out by the Assessing Officer to the assessee during the assessment proceedings. Therefore, the order of the CIT(A) is not correct, as there is no concealment of income or furnishing of inaccurate particulars. The penalty levied u/s 271(1)(c) of the Act is therefore quashed. The appeal of the assessee is allowed.
4 ITA No. 2990/Del/20158. In result, the appeal of the assessee is allowed.
Order pronounced in the Open Court on 11th September, 2018.
Sd/- Sd/-
(R. K. PANDA) (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 11/09/2018
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
5 ITA No. 2990/Del/2015
Date of dictation 10.09.2018
Date on which the typed draft is placed before the 10.09.2018 dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr. PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr. 11.09.2018 PS/PS Date on which the final order is uploaded on the 11.09.2018 website of ITAT Date on which the file goes to the Bench Clerk 11.09.2018 Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order