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TMI Blog2022 (1) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... aking up the appeal filed by the assessee for the Assessment Year 2007-08 as the lead matter. 3. The assessee has raised common grievance in all these appeals. Therefore, grounds raised in ITA No. 798/Ahd/2015 for Assessment Year 2007-08 are reproduced as under:- "1. The ld. CIT(A) has erred in law and on the facts of the case in confirming the action of ld. AO in levying penalty of Rs. 10,00,000/- u/s. 271(1)(c) of the Act, which is wholly unsustainable in law and on facts and as such the appellant could not be charged with any guilt of furnishing inaccurate particulars of income or concealing particulars of income within mischief of Section 271(1)(c) of the Act. The levy of penalty being without jurisdiction and totally uncalled for de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders without properly appreciating the fact and that they further erred in grossly ignoring various submissions, explanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order. This action of the lower authorities is in clear breach of law and Principles of Natural Justice and therefore deserves to be quashed. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal." 4. The assessee is an individual engaged in the business of estate agent/broker. The search was carried out on 21.09.2010 and statement was recorded under Section 132(4) of the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 6. The Ld. AR submitted that the penalty order was passed without invoking proper limb of either that of Section 271(1)(c) or as per penalty proceedings in search cases or that of Section 271AAA of the Act. The assessee at any point of time was not given any hearing before finalizing the penalty order by the Revenue. Thus, it is ex-parte order. Besides that, the penalty levied was 180% rate than giving minimum penalty of 100%. No case was made out by the Revenue for levy of penalty at higher rate i.e. rate in excess of 100% of tax sought to be evaded. On merit, the Ld. AR submitted that land in question does not fall within the ambit of "capital asset", as defined u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at all followed by the Revenue in assessee's case. On merit also land in question does not fall within the ambit of "capital asset", as defined u/s. 2(14) and therefore, capital gain arising on sale of such lands is exempt, this submission of the Ld. AR is correct and as per law. Therefore, the penalty does not sustain. 9. In the result, ITA No. 798/Ahd/2015 for Assessment Year 2007-08 is allowed. 10. As regards ITA No. 799/Ahd/2015 for Assessment Year 2009-10, the issue is identical to that of Assessment Year 2007-08 and hence the appeal of the assessee is allowed. 11. As regards ITA No. 800/Ahd/2015 for Assessment Year 2010-11, in this assessment year also no particular limb was mentioned by the Revenue authorities in the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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