MRS. DEVYANI AJIT MULIK,NAGPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCEL-1, NAGPUR
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Income Tax Appellate Tribunal, NAGPUR BENCH
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by assessee against the order of
Commissioner of Income-tax (Appeals) in National Faceless Appeal Centre, Delhi for Assessment Year 2016-17 u/s.250 of the Income-tax
Act, 1961 (hereinafter referred to as ‘The Act’) on 29.11.2022 emanating from Penalty order passed u/s.271(1)(c) dt. 28.06.2019. The
assessee has raised the following grounds of appeal:
“1. That no adequate opportunity was afforded to the Asessee and learned Commissioner of Income Tax(A) has not considered the explanation furnished by the Assessee and has passed a cryptic order.
ITA No.01/Nag/2023 Ms.Devyani Ajit Mulik
That the value adopted by the Stamp Duty Authorities is only on the estimate basis and not on the actual transaction. There is not an iota of evidence that the Assessee is in receipt of any consideration other than what is stated in the sale deed. Hence, it is prayed not to levy and penalty on the estimated figure. 3. That it is humbly submitted that the learned AO have levied penalty on the assessment done on protective basis as he did not wait for valuation report from the department valuation officer and Commissioner of Income Tax (Appeal) erred in confirming the penalty based on the protective assessment.”
BRIEF FACTS OF THE CASE :
The assessee has shown long term capital gain for the year under
consideration. During the assessment proceedings, assessee submitted
that initially sale deed was executed on 25.04.2011 for
Rs. 2,21,00,000/-. However, the purchaser did not honour and cheques
were bounced. Thus, assessee did not receive any consideration as per
the sale deed dated 25.04.2011. In F.Y. 2015-16, when the sale deed
for constructed flats was executed in the name of the assessee on
24.07.2015, the assessee received her unpaid consideration for sale of
land. Accordingly, assessee offered the same for taxation in F.Y. 2015-
The Assessing Officer (AO) observed that market value as per the
stamp duty authorities of the impugned land was Rs.4,56,15,200/-.
Therefore, the AO gave show cause to the assessee as to why the sale
consideration shall not be taken at Rs.4,56,15,200/- for the purpose of 2 section 50C of the Act. Assessee requested to refer it for valuation.
ITA No.01/Nag/2023 Ms.Devyani Ajit Mulik
Assessee also submitted before the AO that since the land is closer to
airport there are restrictions on the construction. However, the
valuation report was not received and AO passed the assessment order
taking the consideration at Rs.4,56,15,200/- for the purpose of section
50C of the Act. Accordingly, AO made addition of Rs.2,35,08,703/- as
the difference between long term capital gain shown by the assessee in
the return of income and as calculated by the AO. AO also initiated
penalty u/s.271(1)(c) for furnishing inaccurate particulars of income.
Vide order dated 28.06.2019, AO levied penalty u/s. 271(1)(c) after
considering the reply of the assessee for furnishing inaccurate
particulars. Aggrieved by the penalty order, the assessee filed appeal
before the ld. CIT(A). The ld. CIT(A) confirmed the penalty.
SUBMISSION OF LD. AUTHORISED REPRESENTATIVE (AR): 3. None appeared by the assessee.
SUBMISSION OF LD. DEPARTMENTAL REPRESENTATIVE (DR) :
Learned DR relied on the orders of the CIT(A) and AO.
FINDINGS AND ANALYSIS :
We heard the ld. DR and perused and records. In this case, it is a 3 fact that assessee had offered long term capital gain for A.Y. 2016-17.
Assessee had filed copy of sale deed. Assessee also explained to the
ITA No.01/Nag/2023 Ms.Devyani Ajit Mulik
AO that actual sale deed was executed on 25.04.2011, but due to some
reason, the purchaser could not pay to the assessee and subsequently
the amounts were paid on 24.07.2015. Therefore, assessee pleaded that
the valuation should be considered as on 25.04.2011. It is a fact that
AO has invoked the provisions of section 50C of the Act. It is a
deeming fiction. Admittedly, assessee has not received any such
excess consideration. AO has not proved that assessee had received
any such excess consideration. The entire assessment order and
penalty order are based on the sale deed which was actually executed
on 25.04.2011. In these facts and circumstances of the case, we are of
the considered opinion that assessee had filed all necessary details and
disclosed the transaction. Therefore, it cannot be alleged that there was
inappropriate particulars filed by the assessee. We find support from
the judgment of the Hon’ble jurisdictional High Court in the case of
CIT Vs. Fortune Hotels and Estates (P) Ltd. (2014) 52 taxmann.com
330 (Bombay), on identical facts, wherein it was held that penalty
levied u/s.271(1)(c) is not sustainable as there was no filing of
inaccurate particulars by assessee and addition was based on deemed
provisions of section 50C of the Act. Therefore, respectfully following 4 the judgment of Hon’ble jurisdictional High Court (supra), we direct
the AO to delete the penalty levied u/s.271(1)(c) of the Act.
ITA No.01/Nag/2023 Ms.Devyani Ajit Mulik
In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 18th March, 2024.
Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 18th March, 2024 Satish* आदेशक��ितिलिपअ�ेिषत / Copy of the Order forwarded to :
अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The Pr. CIT, concerned. िवभागीय�ितिनिध, आयकर अपीलीय अिधकरण, Nagpur Bench, 4. / DR, ITAT, “Nagpur” Bench. गाड�फ़ाइल / Guard File. 5. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune
