2012 (7) TMI 595 - AT - Income Tax

Penalty u/s 271(1)(C)- assessee contested that on same facts penalty was not even initiated during the A.Y. 2001-02 - Held that - In the year under appeal assessee had not disclosed the sale of the plot during the year under appeal and it was only on enquiry made by the A.O. during assessment proceedings after finding some credit entries in the assessee s bank account that the full facts were brought on record. Had there been no scrutiny assessment during the year under appeal, the full facts would not have come to light - the facts of both the years are not comparable as during the assessment year 2001-02 the assessee duly declared sale of half portion of plot as capital gain and also claimed deduction u/s 54EA. Therefore, there was complete disclosure of facts when assessee filed his return of income for that assessment year - pure case of concealment of income - against assessee.

Summary

Issues:
Appeal against levy of penalty u/s 271(1)(C) of the Act.

Analysis:
The case involved the appellant appealing against the order confirming the penalty imposed by the Assessing Officer (A.O.) under section 271(1)(C) of the Income Tax Act. The appellant acquired a plot of land in 1971, with no activity on it until the assessment year 2001-02 when half of it was sold. The A.O. considered the sale as an adventure in the nature of trade, assessing it as business income instead of capital gain. The A.O. initiated penalty proceedings for concealing income, leading to the levy of a penalty of Rs. 4,05,112. The appellant argued citing judgments and beliefs, including the Hon'ble Gujarat High Court case of New Sarathia Engineering, to challenge the penalty. The ld. CIT(A) confirmed the A.O.'s action, leading to the current appeal.

The appellant contended that penalty proceedings were not initiated in the previous year, and all facts were disclosed, relying on the Reliance Petroproducts case. The appellant also argued that the A.O. did not clearly specify the reason for the penalty, citing the New Sarathia Engineering case. Additionally, the appellant claimed the issue of capital gain versus business income was debatable, referencing the Rupam Mercantiles case. The Department argued against these contentions, emphasizing the concealment of income and the lack of disclosure regarding the plot sale during the assessment.

The Tribunal found that the penalty was rightly imposed as the appellant did not disclose the plot sale in the return of income for the year under appeal, unlike in the previous year. The A.O. had clearly stated the concealment of income in the penalty order, aligning with the New Sarathia Engineering case. The Tribunal also noted that the issue was not merely debatable, as the appellant failed to disclose the transaction voluntarily. Therefore, the Tribunal upheld the penalty imposed by the A.O. and confirmed by the ld. CIT(A).

In conclusion, the Tribunal dismissed the appellant's appeal, upholding the penalty imposed under section 271(1)(C) for concealing income. The decision was based on the lack of disclosure by the appellant regarding the sale of the plot, leading to the concealment of income, as determined by the A.O. and confirmed by the ld. CIT(A).