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TMI Blog2018 (1) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... on Officer and the value of the transaction shown in the registered sale document. If no material has been brought either by way of inquiry by the AO or some tangible information has into his knowledge that the purchase consideration of 38,50,000/- for the plot No. D-101 is less or assessee has paid extra than what has been mentioned in the registered sale document, then no penalty for either concealment of income or furnishing of inaccurate particulars can be levied. Though section 69B is a deeming fiction but in the matter of penalty proceedings, such deeming fiction cannot be extended so as to hold assessee guilty of concealment of income or furnishing of inaccurate particulars when the addition on account of deeming fiction is based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee submitted that, the Tribunal vide order dated 6.9.2013 in ITA No. 4280/Del/2010 in the quantum proceedings has deleted the addition on account of deemed dividend and therefore, the penalty on this addition should be deleted. 3. On the issue of addition of ₹ 3,98,696/- made u/s 69B, Ld. Counsel submitted that the same has been made on account of difference of value as shown in the registered sale deed and the estimate made by the Valuation Officer of the department for determining the value of the plot purchased by the assessee. The assessee has purchased two plots from M/s. Nalini Sarees, the details of which are as under: SL. No. Address of the property Purchas ed from Date of purchase Consideration paid (Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge as to under which limb of the provision of section 271(1)(c) he is initiating the penalty. This he pointed out is evident from the assessment order, wherein he has tried to levy the penalty for both the charges, i.e., 'concealment of income' and 'furnishing of inaccurate particulars of income'. Without specifying the charge such penalty cannot be levied as held by various judicial pronouncement for which he filed separate synopsis of such judgements. 5. On the other hand CIT DR, submitted that the assessee could not explain as to why two similar adjacent plots with same size was purchased at two different value and all the contentions raised by the assessee to bring out the difference has been negated by the Valuation Officer which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities below was that the agreement to sell for both the properties was entered at different times and the locational advantage for both the plots were entirely different and this was demonstrated vide letter dated 5.1.2008 before the AO. The valuation report was rebutted by the assessee in the following manner:- "Originally the amount of ₹ 38,50,000/- paid to the seller by M/s. Kohinoor Agencies amounting ₹ 26,00,000/- on 16/09/2004 and by Smt. Suman Jain ₹ 12,50,000/- on 24/11/2004. The deal was not matured as there was substantial fall in the market rates at NCR including NOIDA. Finally M/s. Splendor Infotech Pvt. Ltd. had come in between and agreed to get the registry done in its own name and further agreed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid extra than what has been mentioned in the registered sale document, then no penalty for either concealment of income or furnishing of inaccurate particulars can be levied. Though section 69B is a deeming fiction but in the matter of penalty proceedings, such deeming fiction cannot be extended so as to hold assessee guilty of concealment of income or furnishing of inaccurate particulars when the addition on account of deeming fiction is based on some kind of estimate given by a Govt. Valuer. If nothing incriminating is found against the assessee, then such a valuation report alone cannot be the basis for levy of penalty. Apart from that the assessee's explanation that the plot No. D-101 was adversely located in comparison to plot no. D-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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