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TMI Blog2015 (12) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... unts of AY 2007-2008 also go on to clearly state the facts and circumstances of the pending litigations pertaining to AY 2005-2006 related to income tax as well as those pertaining to possession. There is also no dispute to the fact that the assessee has offered its 'real income' for taxation and paid the tax accordingly in the return of income for AY 2007-2008 after the conveyance attained finality and all litigations concerning the subject matter of conveyance were resolved. Thus, where assessee has furnished all particulars of income, imposition of penalty is not automatic in nature. Mere making of a claim which is not sustainable in law does not amount to levying of penalty under section 271(1)(c) of the Act. It is just a matter of diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. Being aggrieved with the order of AO, the assessee preferred appeal before the CIT(A), the CIT(A) deleted the addition so made by the AO and in further appeal before the Tribunal by the revenue, the order of the CIT(A) was set aside and the assessment order of the AO was upheld. In view of the same, the AO levied penalty of ₹ 86,88,110/- on the addition of ₹ 2.77cr., against which the assessee preferred appeal before the CIT(A) and the CIT(A) dismissed the appeal of the assessee against which assessee is in further appeal before us. 4. Rival contentions have been heard and record perused. From the record we found that on 30-9-1972, the assessee purchased from M/s MC Ghia Co. land measuring 11,889 sq.meters in Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shes Ltd. An advance of ₹ 51 lacs was to be paid in advance and other amounts for different purposes. The terms of the MOU could not be complied with which led to a suit and compromise and another development agreement dated 22.01.2004. Further on 2-4-2004 the Assessee and Class Construction Hotel Pvt. Ltd. agreed to cancel the MOU dated 23.12.2002 on paying 3.75 crores as compensation to them. 6. We also found that Deed of modification was entered into between the assessee and Kalpavruksha Developers whereby the assessee agreed to sell the suit property on as is where is basis. Further on 28.02.05, Deed of conveyance was executed between the assessee and Kalpavruksha Developers whereby the assessee conveyed the property descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n physical and actual possession of the premises as agents of the Court Receiver. Mercury Paints Varnishes Ltd. was directed to hand over vacant and peaceful possession of the premises on 1st December, 2005. M/s Kalpavruksha Developers also filed appeal No.710/2005 on 6-12-2005 against order dated 29th November, 2005 appointing Court Receiver. On 8-12-2005, Appeal No.219 of 2006 filed against order dated 30th September, 2005 by Kalpavruksha Developers. On 10-4-2006, Consent Terms filed. Disputes between the parties were resolved. Order dated 10th April 2006 confirmed the consent terms dated 10th April, 2006. We had also gone through the copy of the consent terms annexed in the paper book from page no. 6-15. The issue pertaining to the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 clearly state as under: The Assessing Officer has added '2,77,00,000/- on account of sale of Paschim Apartment Plot in Asst. Year 2005-2006 against our NIL Income Tax Return. The assessee has preferred appeal to CIT(A)- XII. CIT(A) passed order dated 03.07.2008. The CIT(A} has granted relief that income from sale of plot accrues in Assessment Year 2007-2008. The assessee has received further amount of 2,01,00,000/- against same Paschim Apartment plot over and above 2,77,00,000/- as a full and final settlement. So the assessee firm has offered total sale value 4,78,00,000/- in Asst. Year 2007-2008. 9. On the basis of above note, the AO took the view that as the land to the developer was conveyed vide Conveyance Deed dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and paid the tax accordingly in the return of income for AY 2007-2008 after the conveyance attained finality and all litigations concerning the subject matter of conveyance were resolved. Thus, where assessee has furnished all particulars of income, imposition of penalty is not automatic in nature. Mere making of a claim which is not sustainable in law does not amount to levying of penalty under section 271(1)(c) of the Act. It is just a matter of difference between assessee and revenue regarding year of chargeability of income and not concealment of income. Intention of assessee is not to conceal the income which is evident from the fact that assessee has filled appeal for A.Y. 2007-08 against the action of department on reduction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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