9911796707
Advanced Search 
TMI Blog2019 (2) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1961 (hereinafter referred to as "Act", in short) at Rs. 33 lacs in place of Rs. 1,50,75,000/- levied by the AO. On the other hand, the Revenue is in appeal against the order of the CIT(A) in partly deleting the penalty levied u/s 271(1)(c) of the Act at Rs. 1,17,75,000/- (Rs. 1,50,75,000 - Rs. 33,00,000 ) . 3. The brief facts of the case are that the AO observed that a housing society constituting 95 persons and Ex.MLA of Punjab Legislative Assembly was formed which was the owner of 21.2 acres of land in Village Kansal, Distt. Mohali on 25.2.2007. The society named as Punjabi Co-operative Housing Building Society Ltd, Mohali entered into a tripartite agreement with M/s Hash Builders (Pvt) Ltd, Chandigarh and M/s Tata Housing Developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 41,64,531/- being 100% of the tax sought to be evaded by the assessee on the ground of furnishing of inaccurate particulars of income. 7. On appeal, the Ld. CIT(A) held that it is undisputed fact that there were certain controversy and dispute with regard to the transfer of plot. The various works were still not completed and the construction of the building in which the Appellant was to get one flat as a part of sale consideration had not started till date. In these facts and circumstances of the case, the belief of the Appellant that Long Term Capital Gains on the amount of balance consideration in cash and value of flat which was yet to be received is not payable in the year under consideration cannot be considered to be totally unrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished inaccurate particulars of such income" 10. We have heard the rival submissions and perused the orders of the lower authorities and materials available on record. 11. Hon'ble Apex Court vide judgment in case of M/s. SSA's Emerald Meadows, (2016) 73 taxmann.com 248(SC) dismissed the Special Leave Petition filed by the Revenue against the judgment rendered by Hon'ble High Court of Karnataka whereby identical issue was decided in favour of the assessee. Operative part of the judgment in case of M/s. SSA's Emerald Meadows (supra) decided by Hon'ble High Court of Karnataka is reproduced below :- "2. This appeal has been filed raising the following substantial questions of law: (1) Whether, omission if assessing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulars of income. .The Tribunal, while allowing the appeal of the assessee, has relied 01 the derision of the Division Bench of this Court rendered In the case of COMMISSIONER or INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court, the appeal is accordingly dismissed." 12. Bare perusal of the notice issued u/s 271(1)(c) apparently goes to prove that the Assessing Officer initiated the penalty proceedings by issuing the notice u/s 274/271(1)(c) of the Act without specifying whether the assessee has concealed ''pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Dilip N. Shroff vs. JCIT, 291 ITR 519(SC) has also noticed that where the Assessing Officer issues notice under section 274 of the Act in the standard proforma and the inappropriate words are not deleted, the same would postulate that the Assessing Officer was not sure as to whether he was to proceed on the basis that the assessee had concealed the particulars of his income or furnished inaccurate particulars of income. According to the Hon'ble Supreme Court, in such a situation, levy of penalty suffers from non-application of mind. In the background of the aforesaid legal position and, having regard to the manner in which the Assessing Officer has issued notice under section 274 r.w.s. 271(1)(c) of the Act dated 22.12.2010 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
