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TMI Blog2014 (7) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, even if the additions have been confirmed in quantum proceedings - assessee is found to have made out the case in light of the decisions relied upon - this is not a fit case for imposition of penalty as none of the ingredients incorporated in the relevant provisions have been fulfilled by the AO before arriving at the conclusion to impose the penalty – Decided in favour of Assessee. - I.T.A. No. 1719/DEL/2012 - - - Dated:- 16-7-2014 - Shri U. B. S. Bedi And Shri Shamim Yahya,JJ. For the Petitioner : Sh. Rajesh Arora, CA For the Respondent : Sh. Tarun Seem, DR ORDER Per U. B. S. Bedi : JM. This appeal by the Assessee is directed against the order of the Ld. Commissioner of Income Tax (Appeals-XI), Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f demolition by MCD. Total : ₹ 1,58,300/- 2.1 Aggrieved by this order of the Assessing Officer, assessee challenged such disallowances by preferring an appeal but Ld. CIT(A) confirmed such addition as made by the Assessing Officer and further assessee preferred appeal before ITAT. However, in the meantime, Assessing Officer completed the already initiated proceedings u/s. 271(1)(c) and imposed penalty @100% of the tax sought to be evaded. The assessee challenged such action before Ld. CIT(A) but without any success. 2.2 Still aggrieved, assessee has preferred further appeal and while reiterating the submissions as made before lower authorities, it was strongly pleaded that there was no occasion for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing P L account. Survey u/s 133A was conducted and the assessee revised the return of a total income of ₹ 1,79,086/ - along with the receipts and expenses in the P L account in response to letter dated 27.1.2005. That the assessee declared in the said P L account, receipt of ₹ 14,50,000/- for the properly in question and the se is not disputed by the Ld. A.O in calculating the alleged profits of ₹ 9,90,081/-. Hence, the allegation that the assessee was not reflecting full sale consideration is not warranted and completely unjustified. 1.2 That the First Floor of flat at A - 104, Paryavaran Complex, was sold to the buyers, Mrs. Janki Rawat and Mr. Gopal Singh Rawat, for sale consideration of ₹ 4,95,000/-, and furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The allocation of cost of construction made by the A.O was thus made on presumption and surmises. 1.5 That the documentary evidence that buyer had paid ₹ 4,95,000/- as sales consideration and thereafter, ₹ 9,55,000/- for the purpose of renovation of the flat were placed on record. The confirmation of buyer was also placed before the CIT(A) during the quantum proceedings. u/r 46A. That, the glaring fact was never confirmed or rebutted by the department. The addition was confirmed without any rebuttal by the department, and without proving as to how the submission of the assessee was erroneous. 1.6 That since the loan amount of ₹ 9,55,000/- was sanctioned on 27.02.2003 as evident from the GIC Offer Letter and Disbursem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same does not automatically attract penalty thereupon. 1.12 Various judicial pronouncements have clarified when the assessee's explanation is not fantastic or fanciful, but the same has not been accepted during the quantum proceedings, it cannot be held that penalty is attracted on the same. 1.13 Explanation of the assessee for the purpose of avoidance of penalty must be an acceptable explanation; it should not be fantastic or fanciful one. Once the initial burden is discharged, the assessee would be out of the mischief unless further evidence is adduced. CIT v. Mussadilal Ram Bharose, (1987) 60 CTR (SC) relied on. 1.14 If an assessee offers an explanation, which is not found to be false, he can save himself . from penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) should be deleted. It was pleaded for confirmation of the impugned order. 5. We have heard both the sides and considered the material on record and we find that in view of the facts and circumstances of the case and material on record, assessee is found to have made out the case in light of the decisions relied upon and incorporated in the Snap-Shot of the arguments filed by the AR of the assessee and mentioned in para 2.2 of our order. Considering the plea raised in light of the case laws relied upon and discussed, we are of the view that this case is not fit for imposition of penalty as none of the ingredients incorporated in the relevant provisions have been fulfilled by the AO before arriving at the conclusion to impose the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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