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TMI Blog2018 (11) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... - ITA No. 6766/Mum/2014 - - - Dated:- 19-9-2018 - Shri R.C. Sharma, AM And Shri Ravish Sood, JM For the Appellant : Shri. Ashok Bansal For the Respondent : Shri. Saurabh Kumar Rai ORDER PER RAVISH SOOD, JUDICIAL MEMBER: The present appeal filed by the assessee is directed against the order passed by the CIT(A)-32, Mumbai, dated. 22.08.2014, which in turn arises from the order passed by the A.O under Sec. 271(1)(c) of the Income Tax Act, 1961 (for short Act ) dated 25.03.2013 for A.Y. 2008-09. The assessee has assailed the order of the CIT(A) by raising the following grounds of appeal before us : 1. The learned CIT(A)-32 erred in confirmed the order ACIT 21(1) in assessing the long term capital gains arising on transfer of the residuary rights in the land at Mumbai at ₹ 1,28,92,569/- and while doing so she amongst others erred in : a) Not appreciating that the capital asset transferred by the appellant during the year was only the residuary right, title and interest in the immovable property received under a gift by the appellant; b) Not appreciating that the actual full value of consideration received or arising on transfer of immo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent agreement did not materialise and hence could not be implemented. It was submitted by the assessee that she had thereafter sold the property under consideration for a sum of ₹ 7 crores to the same person i.e Sh. Babulal Khandelwal Ors, who after adjusting the amount of ₹ 75,00,000/- which was earlier given by him to her mother Smt. Vimla D. Sanghvi paid the balance amount of ₹ 6,25,00,000/- to the assessee. It was claimed by the assessee that the amount of ₹ 75,00,000/- which was earlier received as an advance at the time of entering into the JDA dated 05.02.2003 was offered by her mother for tax in the assessment year 2003-04. The assessee in order to fortify her aforesaid claim submitted before the A.O that there was a clear mention of the JDA earlier entered into between her mother and the developer i.e. Sh. Babulal Khandelwal Ors in the registered conveyance deed dated 30.12.2007. However, as the assessee could not place on record any documentary evidence which could prove her claim that an advance of ₹ 75,00,000/- was earlier received by her mother and offered for tax in A.Y. 2003-04, therefore, the A.O adopted the sale consideration at &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was earlier given by the developer to the assesses mother would only be an application of the sale consideration received by the assessee and not a diversion at source by virtue of any overriding title over the property. The A.O on the basis of his aforesaid observations concluded that the assessee had furnished inaccurate particulars of income and thereby concealed her income. On the basis of his aforesaid deliberations the A.O imposed a penalty under Sec. 271(1)(c) of ₹ 16,99,500/- on the assessee. 7. Aggrieved, the assessee assailed the penalty imposed by the A.O under Sec. 271(1)(c) in appeal before the CIT(A). However, the CIT(A) was not persuaded to subscribe to the contentions advanced by the assessee, and vide his order dated 22.08.2014 dismissed her appeal. 8. The assessee being aggrieved with the order of the CIT(A) upholding the penalty imposed by the A.O under Sec. 271(1)(c) has carried the matter in appeal before us. The Learned Authorized Representative (for short A.R. ) for the assessee at the very outset of the hearing of the appeal, taking us through the facts of case submitted, that part of the sale consideration of ₹ 75,00,000/- w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the Tribunal while disposing off the quantum appeal of the assessee for the year under consideration. It was submitted by the Ld. D.R that as the assessee had suppressed the LTCG by an amount of ₹ 75,00,000/-, therefore, the CIT(A) had rightly confirmed the penalty imposed by the A.O under Sec. 271(1)(c) of the Act. 10. We have heard the authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record. We shall first advert to the challenge thrown by the Ld. A.R to the validity of the jurisdiction assumed by the A.O for levying penalty under Sec. 271(1)(c) on the assessee. We find that the validity of the jurisdiction assumed by the A.O for imposing penalty under Sec. 271(1)(c) has been challenged for the first time before us. It is the case of the assessee that as the irrelevant default in the Show cause notice dated 30.12.2010 was not struck off by the A.O, hence the assessee was not put to notice as regards the default for which she was called upon to explain as to why penalty under Sec. 271(1)(c) may not be imposed on her. We have deliberated on the objection raised by the Ld. D.R that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she had suppressed the Long term Capital gain arising from the sale of the subject property by understating the consideration received by her as a member of a society viz. Kapole Cooperative Housing Society Limited, on transfer of her leasehold rights in respect of a Plot No. B-16 admeasuring 1089 Sq. Yards (out of Plot No. 51) together with the Bungalow comprising of an area admeasuring 5000 sq. feet FSI known as Ninand standing thereon corresponding to C.S.T No. 848 of Village Juhu situate at 55, V.L Mehta Road, Juhu Scheme, Vile Parle (W), Mumbai to Sh. Babulal Khandelwal others by an amount of ₹ 75 lac. On a perusal of the orders of the lower authorities, it emerges that though the assessee had sold the aforesaid property vide registered deed of conveyance dated 30.12.2007 for an amount of ₹ 7,00,00,000/-, but she had in her return of income computed the Long term capital gain (for short LTCG ) at ₹ 53,92,569/- by adopting the sale consideration at ₹ 6,25,00,000/-. It is the case of the assessee that her mother Smt. Vimla D. Sanghvi who had entered into a JDA dated 05.02.2003 with the aforesaid purchaser developer i.e. Sh. Babulal Khandelwal Ors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereon corresponding to C.S.T No. 848 of Village Juhu situate at 55, V.L Mehta Road, Juhu Scheme, Vile Parle (W), Mumbai to Sh. Babulal Khandelwal others for a consideration of ₹ 7,00,00,000/-. Further, the STATEMENT OF RECEIPTS forming part of the deed of conveyance reveals that the vendor i.e the assessee had duly acknowledged the receipt of an amount of ₹ 7,00,00,000/- on the transfer of her aforesaid rights from the purchasers. Rather, the complete details of the diverse payments made from time to time by the purchasers to the assessee vide account payee cheques drawn on Union Bank Of India, Oshiwara Branch, are mentioned. We find that the Tribunal while disposing off the quantum appeal of the assessee for the year under consideration viz. Mrs. Minaxi Kishore Mehta Vs. ITO, Ward-21(1), Mumbai (ITA No. 7871/Mum/2011; dated 13.04.2016), had also observed that the assessee had acknowledged the receipt of the entire sale consideration of ₹ 7,00,00,000/- by her. 13. We have deliberated on the issue under consideration in the backdrop of the material available on record. We are unable to comprehend that now when the assessee on the one hand had acknowledged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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