2017 (8) TMI 1581 - HC - Income Tax

Penalty u//s 271AAA - accounting treatment of the transaction of the JV vs sale of land whereas the assessee treated the same as development agreement / JV - ITAT deleted the penalty levy - HELD THAT - Assessee treated this transaction as a JV/ Development agreement on the basis of registered development agreement which was duly accepted by the Stamp Duty Authorities/ JDA and other Govt. Deptt. The AO treated it sales of the land by interpreting the certain clauses of Development Agreement. During the assessment stage no show cause notice was given to the assessee. However at the penalty proceeding stage the assessee submitted point to point explanation over the clauses of the Development Agreement which had not been controverted by the AO in penalty order. Therefore the assessee s treatment as to land transaction as joint venture / development agreement was bona fide. The Development Agreement is dated 19-03- 2008. Therefore it is not understandable on what basis it can be treated as sales for A.Y.2011-12. Looking into all the facts and circumstances of the case we concur with the findings of the ld. CIT(A) on the issue in question. Thus the appeal filed by the Revenue is dismissed.

Summary

Issues Involved:
1. Justification of deleting the penalty imposed under section 271AAA of the Income Tax Act, 1961.

Detailed Analysis:

Issue 1: Justification of Deleting the Penalty Imposed under Section 271AAA of the Income Tax Act, 1961

Background:
The appellant challenged the Tribunal's decision to dismiss the department's appeal and delete the penalty of Rs. 10,680,000 imposed by the Assessing Officer (AO) under section 271AAA of the Income Tax Act, 1961.

Contentions by the Appellant’s Counsel:
The appellant’s counsel argued that the AO found the certificate from the Panchayat to be fraudulent, leading to the imposition of the penalty. However, this contention was not raised or addressed before the Tribunal.

Tribunal’s Observations:
The Tribunal noted several key points:
1. No Incriminating Documents: There were no documents indicating cash received from "Guru Pragya" for the land transaction. All amounts received were recorded in the books found during the search, with no allegations of unaccounted money.
2. Cheques and Transactions: Consideration received via cheques was shown in the regular books. The seized document (AS-1 pg 4) matched the regular books, showing no undisclosed receipts.
3. Accounting Treatment: The dispute centered on whether the transaction was a sale of land or a joint venture (JV)/development agreement. The AO treated it as a sale, while the assessee treated it as a JV based on a registered development agreement accepted by various authorities.
4. Advance Money and Possession: The advance money was considered refundable security under the development agreement, and possession was given for construction, not for sale.
5. Statements and Income Declaration: Statements recorded under section 132(4) showed that the income was admitted, the manner of its derivation was explained, and it was declared in the Return of Income (ROI), with taxes paid accordingly.
6. Non-filing of Appeal: The non-filing of an appeal against the assessment order was not a valid ground for imposing the penalty.

CIT(A)’s Findings:
The Commissioner of Income Tax (Appeals) [CIT(A)] deleted the penalty, noting:
- No incriminating documents indicated cash received from "Guru Pragya."
- The transaction was treated as a JV/development agreement, not a sale, based on the registered agreement.
- The AO’s interpretation of the development agreement clauses was not supported by documentary evidence.
- The assessee provided a detailed explanation, which the AO did not counter in the penalty order.

High Court’s Decision:
The High Court concurred with the Tribunal and CIT(A), stating:
- The penalty under section 271AAA could not be sustained due to the lack of incriminating evidence and the bona fide treatment of the transaction as a JV/development agreement.
- The appeal filed by the Revenue was dismissed, and no substantial question of law arose.

Conclusion:
The High Court upheld the Tribunal’s decision to delete the penalty of Rs. 10,680,000 imposed under section 271AAA, affirming that the transaction was appropriately treated as a JV/development agreement and not a sale of land. The appeal was dismissed, and no substantial question of law was found.