KUSUM MANOHAR AHUJA,MUMBAI vs. ITO WD 19()(1), MUMBAI

आदेश / O R D E R PER R.C.SHARMA (A.M): This is an appeal filed by the assessee against the order of CIT(A) for the assessment year 2008-2009, in the matter of imposition of penalty u/s. 271(1)(c) of the IT Act. 2. Rival contentions have been heard and record perused. 3. In this case, assessment for A.Y.2008-09 was completed u/s.143(3) of the I.T.Act on 03.12.2010 assessing total income at Rs.97,08,700/- as against income returned of Rs.2,37,162/-. While completing the assessment an addition of Rs.94,59,413/- was made on a/c of LTCG arisen on sale of immovable property.

2 Smt. Kusum Manohar Ahuja 4. The said addition was confirmed by the CIT(A), thereafter, AO levied penalty for the said addition u/s. 271(1)(c) of the IT Act. At the outset, learned AR placed on record the order of the Tribunal dated 13/01/2016 in for the assessment year 2008-09 wherein quantum of addition of Rs.94,59,413/- was set aside by the tribunal to the file of AO for deciding afresh after having the following observation:- From the perusal of the impugned order, it is seen that CIT(A) though has noted from the facts and even incorporated the contention of the AO as well as submission of the assessee, but has not given proper finding as to why the assessee's contention cannot be accepted. The relevant observation and finding of the CIT(A) is as under: "In view of the above 1 find considerable force in the arguments of the AO that the appellant has not purchased the property within a period f one year from the date of sale of the property. Therefore, the AO is justified in holding that the appellant has not fulfilled the conditions for allowing exemption u/s 54F of the I. T. Act and consequently she is not entitled for examination u/s 54F of the 1. T. Act. This being so the action of the AO of disallowing exemption u/ s 54F in the case of the appellant is accordingly confirmed. This ground of appeal is dismissed". The above finding of the CIT(AI shows that the issue has not en examined properly on facts. After hearing both the parties, we are of the opinion that, this matter should go back to the file of the AO to consider the entire contention raised by the assessee as well as the material placed on record and decide, whether the assessee's claim with regard to exemption u/s 54F in the investment made at Godrej Property are within time limit or not. These are purely factual assertion made by the assessee therefore, it needs proper examination at the level of the AO. Accordingly, we set aside this matter to the file of the AO to be decided afresh after giving due and effective opportunity to the assessee and after considering the material on record. Accordingly, ground no. 1 as raised by the assessee is allowed for statistical purposes.

4. It is clear from the above order of the Tribunal that quantum addition with respect to which penalty has been imposed by AO u/s. 271(1)(c) have already been restored by the Tribunal to the file of the AO for deciding afresh after giving due opportunity to the assessee. Respectfully

3 Smt. Kusum Manohar Ahuja following the order of the tribunal, we set aside the penalty and direct the AO to do it afresh after deciding quantum appeal as per the direction given in its order dated 13/01/2016. 5. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on this 04/11/2016