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TMI Blog2013 (9) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... me. Before surrender, the A.O. and the assessee have reached to a compromise that no penal action be taken in the instant case but the A.O. has levied the penalty without discovering any new facts. The gift given by one Sri Mohd. Shoaib was accepted by the A.O. without taking any action. Thus, the surrender was on "agreed basis" as per the ratio laid down by this Court in the case of Commissioner of Income Tax vs. Saran Khandsari Sugar Works [1999 (9) TMI 15 - ALLAHABAD High Court]. Moreover, in the instant case, the A.O. did not ask about the amount of sale consideration minus gift in question – Decided in favor of Assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of computation of capital gain. Thus, the value of the stamp duty shown by the assessee was taken as a sale consideration and the A.O. computed the long term capital gains for Rs.34,41,001/- under section 48 of the Income Tax Act and considered the sale under section 50(c) of the Act. On confrontation with the A.O., the assessee has made surrender of Rs.6,88,200/- only to purchase peace with the department and to avoid penalty etc. As compelled by the ITO, a sum of Rs.6,88,200/- was paid by filing revised computation, nonetheless, the A.O. has levied the penalty of Rs.7,60,000/- under section 271(1)(c) of the Income Tax Act, 1961. But the same was deleted by the First Appellate Authority as well as by the Tribunal vide its impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. Hence, it is not a fit case for imposition of penalty because the concealment of income or particulars of income, is not found to be established from the material on record and the Department has also failed to prove by independent material that the assessee had concealed his income or particulars thereof. Learned counsel also submits that the A.O. agreed to the assessee's proposal for the payment of the Tax but later, issued a notice to levy penalty under section 271(1)(c) of the Income Tax Act. In the instant case, the A.O. levied the penalty of Rs.7,60,000/-. He also submits that in the same assessment year, on 08.08.2003, the minor son of the assessee has also received a Gift of Rs.15,00,000/- from one Sri Mohd. Shoaib but the A.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There was no mens rea on the part of the assessee but it was a poor tax planning of the assessee. In the case of CIT vs. Suresh Chandra Mittal; (2001) 251 ITR 9 SC, it was observed that if the assessee had offered additional income to buy peace of mind and to avoid litigation, penalty under section 271(1)(c) of the Act could not be levied. In the instant case, there is no malafide intention on the part of the assessee and the A.O. has not brought any evidence on record to prove that there was concealment of income. Before surrender, the A.O. and the assessee have reached to a compromise that no penal action be taken in the instant case but the A.O. has levied the penalty without discovering any new facts. The gift given by one Sri Mohd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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