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TMI Blog2019 (8) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... ved advance of Rs. 2,90,40,600/- on account of selling of immovable property. According to the assessee, the amount received by her is capital gains and accordingly she filed her return of income, however, the Assessing Officer is not accepted the explanation of the assessee on the ground that she had purchased the land which is in litigation, it is adventure in the nature of trade. Accordingly, he treated the transaction as business transaction and raised a tax demand of Rs. 72,46,989/- and subsequently imposed penalty of Rs. 1.00 lakh u/sec. 271B for non-auditing the books of accounts as per section 44AB of the Act. 3. Aggrieved, assessee carried the matter in appeal before the ld. CIT(A). The ld. CIT(A) confirmed the order of the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly return has been filed, however, the Assessing Officer has not accepted her claim as capital gain and treated it as adventure in the nature of trade and assessed the income under the head 'business'. Subsequently, penalty has been levied u/sec. 271B of the Act. The only issue for consideration before us is whether 271B levied by the Assessing Officer is correct or not. It is a fact that the assessee had entered into only a single transaction. It is also a fact that she has bonafide belief that the transaction entered into by her leads to capital gains and not business transaction. It is also a fact that during the year under consideration, the assessee entered into a single transaction though the amounts received by her attract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the year. There was another tripartite agreement dated 10.04.2010 by the same parties. The tripartite agreements entered on 12.11.2007 and 10.04.2010 are similar and there is no substantive change. In the supplementary agreement dated 10.04.2010, it was agreed upon that the initial amounts paid by virtue of the tripartite agreement dated 12.11.2007 were accepted as final amounts and that no further amounts would be payable. Barring this there is nothing distinguishable in the supplementary agreement dated 10.04.2010. During the scrutiny proceedings that ensued the contention of the assessee is twofold. Firstly, the assessee contended that the income arising from the said transaction, if any is taxable under Long Term Capital Gain a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntered into a land deal for Rs. 26.71 crores. The assessee did not possess adequate money to finalize the deal. It is only with the intention of finding an immediate buyer, the assessee entered into the deal. 4. That the amounts paid as advance did not constitute payment of part consideration does not hold water. Part consideration alone is paid as advance. Therefore, the contention that there is no consideration involved in the said transaction and hence the transaction does not give rise to tax liability is not tenable. 5. The pattern of payments to RK Mittal gives rise to serious doubts as to the time of payment. The amount of Rs. 50,000/- was paid as advance by the agreement dated 10.10.2002 and the balance amounts were paid to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al burden on the part of the assessee. On the other hand, it freed the assessee from the encumbrances / litigation that could have ensued subsequently. Therefore, it is tripartite agreement dated 10.11.2007 that decides the issue that the income chargeable to tax in the A.Y. 2008-09. By virtue of the above observations, it is clear that the assessee derived business income during the year, the receipts from which have exceeded the forty lakh limit prescribed u/s 44AB of the Act. In view of the failure on the part of the assessee to get his accounts audited, the assessee is liable for penalty in terms of Sec 271B of the Act." From the penalty order of the AO, it is observed that the assessee made only single transaction which is stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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