2012 (11) TMI 425 - AT - Income Tax

Penalty u/s 271 (1) (c) - addition on LTCG - Held that - As per the return of income filed by the assessee the assessee declared long term capital loss of Rs.13,83,666/- but the A.O. assessed long term capital gain at Rs.23,05,136/- but the penalty is imposed by the A.O. on the positive capital gain computed and no penalty on long term capital loss declared by the assessee. Since as per the tribunal order in quantum proceedings, it is held by the tribunal that fair market value of the flat as on 01.04.1981 as declared by the assessee has to be adopted by the A.O. and after effect is given to this tribunal order in quantum proceedings, the resultant capital gain will not be in positive figure but it will be a long term capital loss only although the same may be at a lesser amount than declared by the assessee. But still since no penalty is imposed by the A.O. in respect of capital loss declared by the assessee the present penalty cannot survive because penalty has been imposed by the A.O. on the positive capital gain - in favour of assessee.

Summary

Issues:
1. Penalty imposed under section 271(1)(c) of the Act for computation of Long Term Capital Gains on sale of property based on estimate, surmises, and conjectures.
2. Discrepancies in the adoption of sale consideration, credit for payment made, and fair market value as on 01.04.1981 leading to penalty imposition under section 271(1)(c) by the Assessing Officer.
3. Assessment of long term capital gain by the Assessing Officer and subsequent penalty imposition on the positive capital gain assessed.

Analysis:

Issue 1: Penalty under section 271(1)(c) for Long Term Capital Gains computation
The appellant contested the penalty imposed under section 271(1)(c) of the Act for the assessment year 2003-04. The appellant argued that the penalty was unjustified as there were no inaccurate particulars or concealed income provided. The appellant emphasized that the addition of Long Term Capital Gains was made without merit or justification, solely based on estimates and conjectures. The appellant sought to have the penalty quashed, asserting that there was no intention to furnish inaccurate particulars or conceal income.

Issue 2: Discrepancies in adoption of sale consideration and fair market value
The revenue raised concerns regarding discrepancies in the adoption of sale consideration, credit for payments made, and fair market value as on 01.04.1981. The Assessing Officer had imposed a penalty under section 271(1)(c) based on these discrepancies, alleging inaccurate particulars of income submission by the assessee. The revenue contended that the appellant failed to disclose the true income, leading to the penalty imposition. The revenue highlighted the differences in adopted values and claimed that the appellant's actions were deliberate, justifying the penalty under civil liability.

Issue 3: Assessment of long term capital gain and penalty imposition
The Assessing Officer assessed the long term capital gain of the assessee at a higher amount than declared by the appellant, resulting in a penalty imposition on the positive capital gain assessed. The appellant argued that after considering the tribunal order in quantum proceedings, the resultant capital gain would actually be a long term capital loss. As no penalty was imposed on the capital loss declared by the assessee but not allowed by the Assessing Officer, the appellant contended that the penalty on the positive capital gain could not be justified. The tribunal, after reviewing the submissions and tribunal order in quantum proceedings, concluded that the penalty could not survive as there would be no positive capital gain after adopting the fair market value as declared by the appellant. Therefore, the tribunal deleted the entire penalty, dismissing the revenue's appeal and allowing the assessee's appeal.

In conclusion, the tribunal's decision in the appellate proceedings resulted in the deletion of the penalty imposed under section 271(1)(c) for the assessment year 2003-04, based on discrepancies in the computation of Long Term Capital Gains and adoption of fair market value. The tribunal's analysis considered the accuracy of particulars provided by the assessee, leading to the dismissal of the revenue's appeal and the allowance of the assessee's appeal.