2023 (11) TMI 331 - AT - Income Tax

Condonation of delay filing appeal before ITAT - There is a delay of 117 days in filing the present appeal for which the assessee has given the reasons by filing condonation of delay application. It appears that the delay is genuine and hence, the same is condoned. Penalty u/s 271(1)(c) - assessee did not file the return of income and not paid the capital gain tax on the sale of immovable property - assessee has not paid any taxes earlier as she was under bonafide belief that no tax is payable on sale of agriculture land since the assessee being uneducated and is not aware of the provisions of income tax which resulted into not paying the taxes - HELD THAT - It is pertinent to note that the assessee has not filed return of income and it appears that the assessee being not aware about the tax on sale consideration of the land is genuine. At no point of time assessee concealed the particulars of income or furnished inaccurate particulars of income as the assessee after the order of the CIT(A) has paid the taxes on capital gain. This fact is not disputed by the Ld. DR. The decision of Sun on Peak Hotel (P.) Ltd. 2018 (6) TMI 1055 - GUJARAT HIGH COURT is applicable in the present case as the assessee herein has a genuine case of not aware of tax payment. Thus, the penalty imposed u/s 271(1)(c) of the Act is not justifiable. Decided in favour of assessee.

Summary

Issues:
The appeal against the order of the Commissioner of Income-tax (Appeals) for the Assessment Year 2009-10.

Details:
The assessee did not file the return of income for A.Y. 2009-10 initially. The Assessing Officer finalized the assessment under Section 144 r.w.s. 147 of the Income Tax Act, 1961, determining the total income. Penalty proceedings were initiated under section 271(1)(c) for not paying capital gain tax on the sale of immovable property. The Assessing Officer imposed a penalty of Rs. 2,81,034/- u/s 271(1)(c) of the Income Tax Act, 1961. The assessee appealed the penalty order before the CIT(A), which was dismissed.

The assessee, during the quantum proceedings, agreed to pay the capital gain tax as applicable after the CIT(A) directed the Assessing Officer to calculate the long term capital gain. The assessee claimed to be unaware of the tax liability due to being uneducated and not familiar with income tax provisions. The Ld. AR argued that the addition made during assessment proceedings was not sufficient to initiate penalty proceedings under section 271(1)(c) as there was no wilful concealment of income. The Ld. AR cited the decision of the Hon'ble Gujarat High Court in support.

After hearing both parties, the Tribunal observed a genuine delay in filing the appeal, which was condoned. It was noted that the assessee, genuinely unaware of the tax liability, paid the taxes on capital gain post the CIT(A) order. The Tribunal found no wilful concealment of income or furnishing of inaccurate particulars, considering the assessee's lack of awareness about tax obligations. Relying on the precedent set by the Hon'ble Gujarat High Court, the Tribunal held the penalty imposed under section 271(1)(c) unjustifiable and allowed the appeal of the assessee.