9911796707
TMI Blog2017 (12) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... MBER For The Appellant : Smt . Aparna Karan, CIT ( DR ) For The Respondent : Shri V . K . Aggarwal, AR ORDER PER AMIT SHUKLA, J . M .: The aforesaid appeal has been filed by the Revenue against impugned order dated 30/04/2013 passed by the ld. CIT (Appeals)-XIII, New Delhi in relation to penalty proceedings u/s.271(1)(c) for the Assessment Year 2009-10. 2. The Revenue is mainly aggrieved by deletion of penalty of ₹ 3,59,84,728/- by Ld. CIT (Appeals) which was declared by the assessee in his revised return of income. 3. The brief facts qua the issue involved are that the assessee is an individual, who has filed his return of income u/s.139(1) on 30th September, 2009 declaring total income of ₹ 69,26,801/-. After the period of three months, the assessee suo-motto filed a revised return of income on 18.01.2010 declaring total income of ₹ 11,38,33,301/-, thereby showing additional income of ₹ 10,69,06500/-. The Assessing Officer, has accepted the revised return, however initiated the penalty proceedings u/s.271(1)(c) on the ground that assessee has surrendered the amount of ₹ 10,69,06,500/- after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development, construction, completion and sale of the residential project to be constructed by the other party . In the next year, some disputes arose between the two parties and the amount was forfeited . The other document was an MOU dated 17 / 11 / 2008 between M / s New Idea Asia and M / s Chandragupta Traders Pvt . Ltd . according to which M / s New Idea Asia will be constructing 38 Bungalows to be purchased by the other party for a consideration of Rs . 42,46,00,000 /-. The purchaser paid Rs . 6443900 /- to M / s . New Idea Asia as earnest money vide cheque no . 432365 dated 11 . 11 . 2008 drawn on HDFC Bank . The MOU also provided that in case the purchaser rescinds the MOU, the vendor shall forfeit the earnest money . There was another MOU between M / s . New Idea Asia and M / s . Chandragupta Traders Pvt . Ltd . signed in the next year vide which the above MOU dated . 17 . 11 . 2008 was cancelled and the amount of Rs . 64143900 /- was forfeited . This fact was confirmed vide letter dated 24 . 11 . 2009 written by M / s . New Idea Asia to M / s . S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additional income much before the issuance of notice u/s.143(2), i.e., prior to the selection of the case for scrutiny which was on 28.05.2010 and the first show cause notice by the Assessing Officer was issued on 09.12.2011. He held that in such facts and circumstances the revised return is not only voluntarily but also no penalty u/s. 271(1)(c) can be levied for concealment of income. He also took not of the fact that no survey or search was conducted in the case of the assessee, albeit it was in the case of the third party and the additional income which is subject matter of the levy of penalty the assessee has reflected in the books as his business income in the subsequent Assessment Year and assessee has merely shifted the income from Assessment Year 2010-11 to 2009-10 and hence there is no case of concealment of income. While coming to his conclusion he also referred and also relied upon catena of decisions as cited by him in his order. 7. Before us ld. D.R. strongly relied upon the order of the Assessing Officer and submitted that the very fact that the revised return of income was filed when documents and material found in the course of a search of a third party whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s New Idea Asia by way of ch. No. 410911 dt. 11/11/2008 drawn on HDFC Bank. M/s New Idea Asia was to provide, at its cost and expense, various services to the other party like obtaining requisite licenses, permissions, sanctions and approvals of all the concerned statutory and other authorities for the development, construction, completion and sale of the residential project to be constructed by the other party. In the next year, some disputes arose between the two parties and the amount was forfeited. The other document was an MOU dated 17/11/2008 between M/s New Idea Asia and M/s Chandragupta Traders Pvt. Ltd. according to which M/s New Idea Asia will be constructing 38 Bungalows to be purchased by the other party for a consideration of ₹ 42,46,00,000/-. The purchaser paid ₹ 6443900/- to M/s. New Idea Asia as earnest money vide cheque no.432365 dated 11.11.2008 drawn on HDFC Bank. The MOU also provided that in case the purchaser rescinds the MOU, the vendor shall forfeit the earnest money. There was another MOU between M/s. New Idea Asia and M/s. Chandragupta Traders Pvt. Ltd. signed in the next year vide which the above MOU dated. 17.11.2008 was cancelled and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that:- * firstly, no search and survey was carried out in the case of the assessee albeit it was in the case of the third party from where it was found from the documents that one of the purchaser had paid amount to the proprietorship concern of the assessee, was in the form of earnest money received through cheque drawn on an HDFC bank and there was a clear cut provision in the MOU that in case the purchaser rescinds the MOU the vendor shall forfeit the earnest money and later on the amounts aggregating to Rs . 10,69,06,500 /- stood forfeited which assessee had treated is as business income in the books of account in the financial year 2009 - 10 relevant for the Assessment Year 2010 - 11; * secondly, the assessee by way of revised return filed on 18 . 01 . 2010 has decided to offer this receipt in the financial year 2008 - 09, i . e . , in the Assessment Year 2009 - 10 and also requested that advance tax paid for sum of Rs . 80 lakhs on 29 . 10 . 2009 should be treated allowed as credited on this income for the Assessment Year 2009 - 10 which has been allowed by the Assessing Officer; * lastly, no inq ..... 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