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TMI Blog2016 (7) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... revised return of income filed on 16.7.2012 before receiving the notice issued by the A.O. u/s 148 of the Act and it is submitted that the revised return filed by the assessee is voluntary. The A.O. has acted upon the return filed by the assessee accepted the capital gains. Therefore, the A.O. cannot initiate the proceedings on the ground that assessee has concealed the income. We find that there is a lot of force in the argument of Ld. Counsel for the assessee. That apart the assessee has disclosed the amount received by him along with the return of income, which was also explained to the A.O. Keeping in view of the above, by considering the facts and circumstances of the case, we are of the opinion that it is not a fit case to impose pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea of 33,240 Sq.ft. and 3,600 Sq.ft. parking area. The assessee and other co-owners had also handed over the possession of the property on 15.7.2008 received a refundable deposit of ₹ 2,25,00,000/-. Subsequently, the A.O. has issued show cause notice u/s 148 of the Act dated 12.7.2012 on the ground that there is an escapement of income in the hands of the assessee. Meanwhile, the assessee filed a revised return on 16.7.2012 by revising his total income at ₹ 2,01,62,545/- admitting short term capital gain at ₹ 1,92,10,735/-. The A.O. after verification of the details furnished by the assessee during the re-assessment proceedings, completed the assessment u/s 143(3) r.w.s. 147 of the Act accepted the return of income filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins offered by the assessee was also accepted, therefore, since the assessee has offered capital gains voluntarily, there is no concealment and section 271(1)(c) of the Act has no application in the assessee s case. 8. The CIT(A) after considering the explanation of the assessee, he has observed that there is lot of force in the argument of Ld. Counsel for the assessee. However, the unimpeachable fact remains that the assessee having entered into a Development agreement with the builder for the development of his land and handed over the possession on 15.7.2008, assessee should have been offered the income received from the developer as a short term capital gain but assessee failed to admit it and therefore it is amounting to concealment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22.2.2011. The Ld. Counsel for the assessee has relied on the following case laws to substantiate the above arguments:- 1) CIT Vs. Najoo Dara Deboo 218 Taxman 473 (Ahb) 2) Metal Rolling Works Ltd. Vs. CIT 339 ITR 373 3) CIT Vs. S.M. Construction 223 Taxman 263 (Bombay) 11. On the other hand, the Ld. D.R. has submitted that the assessee ought to have been disclosed the capital gain when he originally filed the return of income and submitted that it is a clear case of concealment of income and supported the order passed by the A.O. as well as CIT(A). 12. We have heard both the parties, perused the materials available on record and gone through the orders of the authorities below. The assessee had filed a return of income origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red before receiving a notice u/s 148 of the Act and therefore penalty proceedings may be dropped. The A.O. after considering the explanations of the assessee was of the view that assessee has disclosed the capital gains only after department detected non-disclosure, therefore, it is a concealment of income, accordingly penalty u/s 271(1)(c) of the Act was levied. The assessee has made a detailed submissions before the Ld. CIT(A). The Ld. CIT(A) after considering the explanation given by the assessee, he has observed that there is a lot of force and merit in the contentions of the Ld. Counsel for the assessee, however, it is an impeachable fact which remains that assessee having entered into a development agreement with a builder for the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case to impose penalty u/s 271(1)(c) of the Act. 15. Apart from above, there are divergent views about the taxability of capital gains that, whether capital gain can be charged only on receipt of sale consideration or from the date on which development agreement was entered. In this context, the Hon ble Allahabad High Court in the case of CIT Vs. Najoo Dara Deboo (supra) has held that the Capital gains can be charged only on receipt of the sale of consideration and not otherwise, when only the agreement is signed and no money is received. 16. The Hon ble Bombay High Court in the case of Metal Rolling Works Ltd. Vs. CIT (supra) has considered the penalty u/s 271(1)(c) of the Act observed that the assessee having received only initial p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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