TMI Blog2016 (3) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... e date on which he otherwise came to know of it whichever was earlier. The assessee chose not to adopt any of the options for getting the revision of the claim. The Tribunal concurred with the findings recorded by the CIT(A) and the Assessing Officer in rejecting the assessee's rectification application because the mistake sought to be amended was not prima facie mistake. Secondly the assessee was submitting corroborating evidence with the rectification application which required investigation and verification and thus the same was outside the purview of the provisions of Section 154 of the Act. - Decided against assessee - ITA No. 63 of 2015 (O&M) - - - Dated:- 18-1-2016 - MR. AJAY KUMAR MITTAL AND MRS. RAJ RAHUL GARG, JJ. For The Appellant : Mr. B.B.Bagga, Advocate For The Respondent : Mr. Denesh Goyal, Advocate Ajay Kumar Mittal,J. 1. This appeal has been preferred by the appellant-assessee under Section 260A of the Income Tax Act, 1961 (in short, the Act ) against the order dated 23.5.2014, Annexure A.14 passed by the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar (in short, the Tribunal ) in ITA No.579/(Asr)/2011 for the assessment year 2008-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not paid in the said income tax return. During the course of summary assessment under Section 143(1) of the Act, the Assessing Officer raised a demand of ₹ 67,31,828/- vide notice dated 20.10.2009, Annexure A.2. The land of the appellant measuring 24 kanals 7 marlas in Village Meharbanpur, Tehsil Amritsar, District Amritsar which was falling outside the notified 6 kilometers range from the municipal limits was sold for a total consideration of ₹ 2.50 crores vide sale deed dated 25.3.2008, Annexure A.3. According to the appellant, this land being outside 6 kilometers of municipal limits is not capital asset as per section 2(14) of the Act as applicable to the relevant date and proceeds of the sale in respect of the said land are not subject to capital gain tax. The Assessing Officer treated the error committed by the appellant as wrong verification in the return vide impugned notice dated 20.10.2009, Annexure A.2. The appellant was called upon to deposit a sum of ₹ 67,31,828/-. The Deputy Commissioner of Income Tax (DCIT) issued order of penalty under section 221(1) of the Act dated 30.12.2009, Annexure A.6. The appellant complied with the impugned order. Due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee could file a petition for revision within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it whichever was earlier. The assessee chose not to adopt any of the options for getting the revision of the claim. The Tribunal concurred with the findings recorded by the CIT(A) and the Assessing Officer in rejecting the assessee's rectification application because the mistake sought to be amended was not prima facie mistake. Secondly the assessee was submitting corroborating evidence with the rectification application which required investigation and verification and thus the same was outside the purview of the provisions of Section 154 of the Act. The relevant findings recorded by the Tribunal read thus:- We have heard the rival contentions and perused the facts of the case. As regards the additional ground raised by the assessee at this juncture with regard to the mistake on the legal advice of the counsel for the assessee who stated to have included wrongly the capital gains, infact this is not proper forum to revise the claim by taking the shelter of additional ground. If the return had been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cause for not levying penalty under section 221(1) of the Act. As per Explanation 221(1), the assessee shall not cease to be liable to any penalty merely by reason of the fact that before the levy of penalty he has paid to the tax. Infact, in the present case, the penalty under section 221(1) of the Act was levied on 30.12.2009 on which date, the assessee was enjoying the money by investing the same in his sister concern in which he is stated to have incurred losses and by placing balance sheet of such company cannot help the assessee to prove good and sufficient cause and such action of investing money in the said concern M/s Nijjar Agro Foods appears to be quite intentional for avoiding preferred liability of income tax. Therefore, there cannot be any good and sufficient cause established before any of the authorities below or even before us for not levying penalty. 9.2. In the facts and circumstances of the case, we find no infirmity in the order of the learned CIT(A) who has actually confirmed the levy of penalty under section 221(1) of the Act. Thus, grounds 1 to 3 of the assessee are confirmed and the appeal is dismissed. 10. Now we take up appeal of the assessee in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneously shown by him. However, the AO has rejected the rectification application being not maintainable on the plea that the mistake sought to be amended is not a mistake apparent from record and the matter is outside the purview of rectification on points of debatable nature on which more than two opinions are likely to be drawn, thereby deriving support from various case laws cited in support thereto. 12.1 We concur with the view of the learned CIT(A) that the AO is quite justified in rejecting the assessee's rectification application because the mistake sought to be amended is not a prima facie mistake. Secondly, the assessee is submitting corroborating evidence with the rectification application which requires investigations and verification and as such the same is outside the purview of provisions of section 154 of the Act. However, the correct course would have been by seeking remedy by moving revision application under section 264 before the CIT II Amritsar soliciting for revision of order passed under section 143(1) of the Act or by filing revised return. 12.2 As regards to the various Tribunal's decisions cited by the learned counsel in support of his co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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