9911796707
TMI Blog2015 (2) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... the order, dated12.01.2012, of the CIT(A)-40, Mumbai, the assessee has filed following grounds of appeal: The ground or grounds of appeal are without prejudice to one another. 1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in confirming the penalty levied by the AO u/s.271(1)(c) for ₹ 1,48,19,500/-. 2. The ld. CIT(A) failed to appreciate that: a) the Appellant has neither concealed the particulars of its Income nor furnished any inaccurate particulars of such income; b) no unaccounted cash was received by the Appellant on sale of plots; c) no income has arised or accrued in the hands of the Appellant out of receipts from M/s. Alokik Township Corporation; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 2 Crores. Second addition was about unaccounted cash receipt to ₹ 1.40 Crores on sale of plots. During the appellate proceedings, the FAA confirmed the addition made by the AO. Last addition of ₹ 25 Lakhs, made by the AO, was deleted by the FAA. 3.The AO initiated the penalty proceedings by issuing notice u/s 274 r.w.s 271(1)(c) of the Act. Vide his order, dated 18.02.2011, he held that assessee concealed the particulars of income for the year under consideration. As a result, he levied penalty of ₹ 1.48 Crores taking into consideration the addition of ₹ 2 Crores made by the FAA. 4.During the course of hearing before us, Authorised Representative(AR)stated that the Tribunal vide its order dated 17.11.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, the next question that arises is whether the same is exigible to tax or not. We notice that it was not the case of the tax authorities that the same is assessable to tax as unexplained cash credit in terms of sec. 68 of the Act, since there is no whisper about the same and further they have accepted that genuineness of receipt of ₹ 3.00 crores from M/s ATC. Hence the 'refundable advance' of ₹ 3.00 crores received by the assessee constitutes capital receipt in the hands of the assessee, which is not liable to tax under any of the provisions of the Act. Further, a perusal of the MOU would show that it was a case of Joint development of land belonging to the assessee and there is no evidence to show that the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice that the AO did not take any step to disprove the said explanation. However, the submission of the Ld A.R was that they were advances received on booking of plots and 80% of the bookings got cancelled and the assessee was constrained to refund the advance amount. We further notice that the AO did not conduct enquiries with any of the prospective buyers to substantiate his views. In view of the foregoing, we are of the view that the assessing officer has reached conclusions about the selling rate of plots only on surmises and conjectures without bringing any credible evidence on record. Hence, in our view, there is no case to presume that the assessee had received a portion of advance in cash without accounting the same in its books o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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