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TMI Blog2020 (12) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee had entered into an agreement dated 06.06.2011 with M/s.Skyline Construction and Housing Private Limited. As per the agreement, permission of right of way through assessee's land was given to M/s.Skyline Construction and Housing Private Limited. The right of way / easement right was granted for perpetuity. As a consideration for the same, the assessee received Rs. 1.5 crore in the current assessment year, viz., assessment year 2012-2013 and the balance Rs. 2 crore was received in assessment year 2014- 2015. The assessee did not offer to tax for assessment year 2012-2013 the amount received from M/s.Skyline Construction and Housing Private Limited. According to the assessee, the easement right would be effective only on receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tax sought to be evaded. The relevant finding of the CIT(A) in imposing penalty of Rs. 57,29,893 reads as follow:- "9. Now I proceed in levying the penalty on the enhancement of the assessment, but the question will arise now as to whether minimum penalty of 100% of tax sought to be evaded to be levied or maximum penalty of 300% of tax sought to be evaded to be levied. The imposition of penalty is a matter of discretion and is to be exercised judiciously after consideration of all relevant circumstances and that even if a minor penalty, the authority competent will be justified in not imposing the penalty, if circumstances so warranted. The appellant has not declared those receipts in the original return of income filed in the year in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inimum penalty is leviable in this case. Accordingly, the minimum penalty of Rs. 57,29,893/- is hereby levied." 6. The assessee being aggrieved by the order of the CIT(A) imposing penalty of Rs. 57,29,893, has filed this appeal before the Tribunal, raising the following grounds:- 1. That on the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) 5 [(CIT (A)] has grossly erred in imposing penalty under section 271 (1 )(c) without any findings. The penalty imposed may kindly be deleted. 2. That on the facts and in the circumstances of the case and in law, the learned CIT (A) has grossly erred in not passing a speaking order as has been held by various Courts, including the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven reading the Appellant's reply cannot be considered judicious by any yardstick. A simple reading of the order will reveal that it has been passed without application of mind. Such an order cannot be sustained. The order imposing penalty may, therefore, kindly be quashed and the penalty imposed be deleted. 6. The assessee craves leave to add / alter any of the grounds of appeal before or at the time of hearing." 7. The learned AR has filed a paper book comprising of 96 pages inter alia enclosing notices issued by the CIT(A), the reply to the said notices, the agreement dated 06.06.2011, the assessment orders for assessment years 2012-2013 and 2014- 2015, the CIT(A)'s order and the ITAT's order in the quantum assessment. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.2019. The Hon'ble jurisdictional High Court in the case of CIT v. Dr.Harsha N.Biliangady (supra) had held that when substantial question has been admitted on quantum assessment, penalty u/s 271(1)(c) of the I.T.Act cannot survive since the additions made were apparently debatable / doubtful. The relevant finding of the Hon'ble High Court reads as follow:- "8. We do not find any reason to hold that the finding given and the conclusion arrived at by the Tribunal as incorrect. We are also of the opinion that where penalty is imposed in respect of any addition where the High Court has admitted the appeal on substantial question of law, then the sustainability of the addition itself becomes debatable, and in such circumstances penalty canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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