Txa/39/2015 Of The Commissioner Of Income Tax, Panaji v. Shri. Roy Antao

IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO. 39 OF 2015 The Commissioner of Income TaxAaykar BhavanPatto Panaji, Goa.…AppellantV e r s u s Shri Roy AntaoOpp. Santosh Garage, Near Art Ads,Vidyanagar, Margao,Major in age,PAN : …Respondent Ms. Asha Desai, Advocate for the Appellant. ORAL ORDER (Per F. M. Reis, J.) Coram :-F. M. REIS, K. L. WADANE, JJ.th Date : 6 July, 2015 Heard Ms. Asha Desai, learned Counsel appearing for the Appellant. 2.The above Appeal challenges the order dated 18.07.2014 for theassessment year 2007-08 passed by the Income Tax Appellate Tribunal, Panaji. 3.Briefly, it is the contention of the Appellant that the Respondent filedhis returns of Income Tax for the subject assessment year on 28.03.2008 declaringa total income of Rs.45,150/-. It is further their case that with regard to the spouseof the Respondent, an Order under Section 143(3) of the Income Tax Act waspassed on 08.10.2009 making an addition towards capital gains amounting to asum of Rs.55,58,525/-. Accordingly, penalty was imposed under Section 271(2)(c)of the said Act on 25.02.2010 against the Respondent. 4.Being aggrieved by the said Order, the Respondent preferred anAppeal before the Commissioner of Income Tax who allowed the said Appeal by itsOrder dated 28.09.2013. Being aggrieved by the said Order, the Appellantpreferred an Income Tax Appeal No. 384 of 2013 which came to be dismissed byOrder dated 18.07.2014. Being aggrieved by the said Orders, the Appellantpreferred the above Appeal contending that the Tribunal has erroneously deletedthe penalty under Section 271(1)(c) levied by the Assessing Officer by ignoring thedistance measured by the Assessing Officer to prove that the land sold is withineight kilometres from the Municipal limits. 5.Ms. Asha Desai, learned Counsel appearing for the Appellant, insupport of the above Appeal has taken us through the Orders passed by the CITAppeals as well as the Income Tax Appellate Tribunal to contend that the findingsarrived at by the Authorities are perverse and, consequently, calls for interferenceby this Court. Learned Counsel further pointed out that the Respondent hasdeliberately suppressed and failed to disclose the capital gains in respect of thesale transaction which entitled the revenue to impose the penalty in terms ofSection 271(1)(c) of the said Act. Learned Counsel has thereafter taken us throughthe said provisions and pointed out that the Assessing Officer was justified toimpose the said penalty and, as such, interference by the Appellate Authorities istotally erroneous which calls for interference by this Court on the aforesaidsubstantial questions of law. 6.We have considered the submissions of the learned Counsel and wehave also gone through the records. On going through the Order of the Assessing 6.We have considered the submissions of the learned Counsel and wehave also gone through the records. On going through the Order of the Assessing Officer, we find that he has imposed penalty under Section 271(1)(c) of the said Actto the tune of Rs.14,40,912/- on the ground that the Respondent had not correctlyfiled his returns for the subject assessment year and had avoided to pay the capitalgains. In the Appeal preferred before the CIT Appeals, we find that the learnedCommissioner has taken note of the explanation given by the Respondent and thefact that the Respondent was also relying upon a certificate issued by the localSarpanch and the Engineer from the Public Works Department to inter alia holdthat the Respondents had not deliberately suppressed any material,. TheCommissioner thereafter held that the Assessee had disclosed the correct amountof the sale consideration and to claim deductions/exemption for Agricultural land, ithad relied upon the certificate from the Village Panchayat, certificates from theKadamba Transport Corporation Limited and the Public Works DepartmentEngineer, wherein it is certified that the road distance was more than eightkilometres from the nearest Municipal limits. It was also noted that the AssessingOfficer had made further investigations and found with the aerial crow fly distancein a straight line distance of the land in question was less than eight kilometres andin fact the Assessee had thereafter paid the taxable dues of capital gains. TheCommissioner as such came to the conclusion that the Respondent bonafidelyclaimed exemption depending upon certain certificates from the Government aswell as the local self Governmental Authorities. Consequently, the Commissionerallowed the Appeal preferred by the Respondent. 7.On perusal of the Order passed by the learned Tribunal dated18.07.2014, we find that the Tribunal also found that the Respondent-Assessee haddisclosed the correct amount of the sales transaction whilst filing the returns. The Tribunal also noted that based on the said Certificates the Respondent had claimedexception on a belief that the land was beyond 8 kilometres from the Municipallimits and that the Respondents had also paid the dues payable on such capitalgains. The Tribunal as such found that the Respondent had acted bonafide anddismissed the Appeal preferred by the Appellant. 8.The learned CIT Appeals and the learned Income Tax AppellateTribunal have concurrently come to the conclusion on the basis of the material onrecord that the Respondent had acted bonafide in claiming an exemption on theassumption that the subject land was not within 8 kilometres from the MargaoMunicipal limits. These findings have been arrived at based on the material onrecord as referred to in the impugned Orders passed by the learned Tribunal. TheAuthorities have also relied upon the Judgments referred to in the impugned Ordersto come to such conclusions. We find no perversity in such findings nor any errorcommitted by the Authorities below whilst passing the impugned Orders. Thelearned Tribunal based on the material on record, has rightly come to theconclusion that there was no ground to initiate penalty proceedings in terms ofSection 271(1)(c) of the Income Tax Act as the Respondent had duly made thedisclosures bonafidely. 9.We, accordingly, find that there are no substantial question of law thatarise in the present Appeal for consideration of this Court and, as such, the Appealstands rejected. K. L. WADANE, J.F. M. REIS, J.