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TMI Blog2014 (1) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... on record by the assessee, which has been detailed above is also relevant - The material was not before the Assessing Officer while evaluating assessee's case for levy of penalty under Section 271(1)(c) of the Act – the matter remitted back to the AO for fresh adjudication – decided in favour of Assessee. - ITA No.303/PN/2012, ITA No.406/PN/2012, ITA No.407/PN/2012 - - - Dated:- 16-7-2013 - Shri Shailendra Kumar Yadav And Shri G. S. Pannu,JJ. For the Appellant : Mr. Sunil Ganoo For the Respondent : Mr. Rajib Jain ORDER Per G. S. Pannu, AM. The captioned three appeals relate to the different assessees of the same family and involve a common issue; therefore, they have been clubbed and heard together and are being disposed-off by way of a consolidated order for the sake of convenience and brevity. 2. The three assessees are co-owners of a property which has been sold during the year under consideration and the resultant Long Term Capital Gain (in short 'LTCG') assessed by the Assessing Officer was found to be exigible for levy of penalty under Section 271(1)(c) of the Income Tax Act, 1961 (in short 'the Act'). The assessees are aggrieved with the action of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ength of a certificate dated 29.12.2009 issued by the Talati Village Ghaujne and also a letter issued by the Assistant Director Town Planning, Pune dated 23.12.2009 stating that the property was located within 8 kms. from the municipal limits of PCMC. The learned counsel submitted that the assessment based on the aforesaid material has since been accepted by the assessee and no further appeal has been filed. However, the learned counsel pointed out that subsequently assessee approached the office of Town Planning Development, Pune and sought information under the Right to Information Act, 2005 as to the basis of stating that distance of impugned land was within 8 kms. from the municipal limits of PCMC. At page 3 of the Paper Book is placed the reply of the Town Planning Valuation Department, Pune and it is contained therein that the information furnished in its earlier communication dated 23.12.2009 was based on the 'Sanctioned Regional Development Plan'. In this context, the learned counsel pointed out that the position has to be examined as on the date of the Notification issued by the CBDT No. 9447 on 06.01.1994 which provides for the area-limits referred to in Section 2(14)(i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minary issue raised by the assessee, we have examined the rival positions. Presently, we are dealing with the penalty levied by the Assessing Officer under Section 271(1)(c) of the Act with regard to the LTCG assessed on sale of land located at Village- Ghaunje, Taluka- Mawal, District- Pune. The original plea of the assessee as contained in the return filed on 31.10.2007 was that the said land was not a 'capital asset' within the meaning of Section 2(14)(iii) of the Act, being an agricultural land falling beyond 8 kms. from the municipal limits of PCMC. The said position was also accepted by the Assessing Officer in the assessment made under Section 143(3) of the Act on 26.11.2009. It is only subsequently in the course of re-assessment proceedings initiated under Section 147/148 of the Act that the Assessing Officer came to conclude that the land in question fell within 8 kms. from the municipal limits of PCMC, which was based on a communication from the Assistant Director Town Planning, Pune dated 23.12.2009 and also a certificate dated 29.12.2009 issued by Talati of Village Ghaujne. Accordingly, the capital gain on sale of land was held to be taxable. Ostensibly, the said assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to be final so as to fasten the liability of penalty under Section 271(1)(c) of the Act. In support of the aforesaid proposition, we may refer to the judgement of the Hon'ble Bombay High Court in the case of Jainarayan Babulal vs. CIT 170 ITR 399 (Bom.). In view of the aforesaid discussion, the preliminarily plea raised by the assessee while assailing the levy of penalty under Section 271(1)(c) of the Act deserves to be admitted and examined on its merits. In support of the said plea, the additional evidence sought to be placed on record by the assessee, which has been detailed above is also relevant and deserves to be admitted. We hold so. 8. Since the aforesaid material was not before the Assessing Officer while evaluating assessee's case for levy of penalty under Section 271(1)(c) of the Act, it was deemed proper that the matter be restored back to the file of the Assessing Officer who shall consider the fresh material and evidence sought to be relied upon by the assessee and thereafter adjudicate the efficacy of the levy of penalty under Section 271(1)(c) of the Act qua the amount of LTCG in question. The aforesaid aspect was put to the parties in the course of hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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