PR COMMISSIONER OF INCOME TAX-I JAIPUR vs. NARAYANA HEIGHTS AND TOWERS

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 203 / 2017 Principal Commissioner of Wealth Tax-I, New Central Revenue Building, Statue Circle, Jaipur (Raj.) ----Appellant Versus Narayana Heights & Towers, S-220, Time Square, Central Spine, Vidhyadhar Nagar, Jaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. Aditya Vijay for Mr. Anuroop Singhi For Respondent(s) : _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGH Order 17/08/2017

By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal preferred by the assessee under Section 271 (1)(c) of Income Tax Act, 1961. Counsel for the appellant has framed the following questions of law: “i) Whether the Tribunal was justified in deleting the penalty levied by Assessing Officer and confirmed by CIT(A) u/s 271(a)(c) of Rs. 34,05,436/- levied in respect of addition of Rs. 1,10,20,831/-? ii) Whether the Tribunal was justidied in deleting the penalty of Rs. 34,05,436/- without considering the fact that no appeal was filed against the quantum order passed by Assessing

(2 of 3) [ITA-203/2017] Officer? iii) Whether on the facts and circumstances of the case, the finding of the Tribunal is perverse, contrary to the record and untenable in the eye of law?” In view of the observations made by the Tribunal in para 4.2 and 4.4 which reads as under:- “4.2. He submitted that in respect of addition of Rs. 61,09,482/-, the assessee transfer its part of agriculture land (0.2300 hectares) to one of its partners shri Sitaram on redemption as part of capital redemption while sale deed dated 5/11/2011 for Rs. 1,81,95,000/- the cost of the land against the sale was Rs. 2,04,19,388/- the stamped authority adopted value for the purpose of stamp duty of Rs. 1,98,42,556/-. However, the assessing officer ignored the actual sale consideration at Rs. 1,81,95,000/- as well as the deemed consideration under Section 50C of the Act of Rs. 1,98,42,556/- but took the sale consideration of Rs. 2,65,28,870/- treating the same as fair market value on the basis of compensation paid by NHAI. He submitted that had the actual sale consideration and deem consideration under section 54C was taken then there have been no profit but loss. He submitted that this addition is patently wrong and it can not be considered as concealed income for which inaccurate particulars have been filed. He submitted that even Section 45(4) of the Act can not be applied. He further submitted that the assessee was of the view that compulsory acquisition by NHAI would not attract the capital gain further in respect of addition of Rs. 49,11,349/- the assessee was under bonafide belief that the income was exempt from the tax on account of compulsory acquisition under section 10(37) of the Act. The Ld. Counsel relied on the decision of the coordinate bench rendered in the case of GTO Vs. Rajmata Shanti Devi(2001) 76 ITR 299 (Ahd) and also place reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Price Waterhouse Coopers Pvt. Ltd. Vs. CIT and another 348 ITR 306 (SC). He further submitted that the assessment order under section 143(3) of the Act, was passed on the basis of information supplied by the assessee. So, it is not the case where the assessee has deliberately concealed

(3 of 3) [ITA-203/2017] the material particulars. In support of this Ld. Counsel for the assessee drew our attention to profit and loss account and the details on fixed assets as furnished during the course of assessment proceedings. 4.4. We have heard the rival contention and perused the material available on record, we find merit into the contention of the ld. Counsel for the assessee that out of two additions one addition of Rs. 61,09,482/- was wrongly made and the assessee has furnished all material facts before the Assessing Officer under these facts the assessing officer ought not to have levied the penalty. We find force into the contention of Ld. Counsel for the assessee that in the penalty proceeding the AO should consider the facts in right perspective. He should come to a specific finding with regard to concealment of income. In the considered view, the explanation as given by the assessee ought to have been considered by the AO, The AO should not to have passed penalty order in a mechanical way merely on the assumption that the assessee has accepted the charge of concealment of income. Ground no. 2 of appeal is allowed.” We see no reason to interfere with the matter. No substantial question of law arises. Hence, the appeal stands dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. A.Sharma/14