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TMI Blog2022 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... ) observed that the assessee has not disclosed Capital Gain on sale of Land. The AO after hearing the assessee added the Capital gain and also initiated penalty for concealment of income. The AO also made addition of undisclosed interest. The assessee has not preferred any appeal against the quantum of addition. The AO levied the Penalty u/s 271(1)(c) of the Act. 3. The Assessing Officer has mentioned in his order under section 271(1)(c) of the Act as under: Quote "While verifying, the source of the deposits, it was seen that the assessee's bank account with HDFC Bank, Bhandarkar Road branch was credited with Rs 26,51,000/- on 20/10/2014 & Rs 26,51,000/- on 31/10/2014. The assessee explained that the said deposits represented sale consideration of his land at MaujeBhukum, Khatpewadi vide agreements dated 17/10/2014 registered vide No 3634/2014 & 3635/2014 with Shri Nandkishor Chaudhary & Smt. Vijayalaxmi Chaudhary. It was further submitted vide submission dtd 05/12/2017 that the capital gain on the sale of aforesaid lands was not included in the return of income filed for AY 2015-16, under the bonafide belief that the land in question was situated beyond 8 Kms from the limits of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to be liable for penalty u/s 271(l)(c) of the I T Act, for concealing the said income on account of interest of Rs. 8,414/-."Unquote. 3.1 Aggrieved by the order of the AO the Assessee filed appeal before the ld.Commissioner of Income Tax(Appeal). The ld.CIT(A) upheld the Penalty order. 4. Aggrieved by the order of the ld.CIT(A), the assessee filed an appeal before this Tribunal. 5. The Ground No.1: The appellant assessee has claimed that the penalty order has been passed beyond the statutory time limit mentioned in the Act. It is observed that the Penalty Order was passed on 07/06/2018. The Assessment order u/s 143(3) was passed on 20/12/2017. The Penalty notice u/s 271(1)(c) was issued on 20/12/2017. There is no dispute on these dates. Thus, the penalty order was passed within Six(06) months of passing the assessment order. The relevant Section 275 is reproduced here as under : Section 275. (1) No order imposing a penalty under this Chapter shall be passed- (a) in a case where the relevant assessment or other order is the subject-matter of an appeal to the Commissioner (Appeals) under section 246 or section 246A or an appeal to the Appellate Tribunal under section 253, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to offer the Capital gain under the bonafide belief that the land is outside the statutory limit of 8 kms hence the sale is not taxable as capital gain. The AR also submitted that as soon as the mistake was realized the assessee filed the revised computation of Income. Therefore, the Ld.AR vehemently submitted that there was a bonafide mistake. Hence Penalty cannot be levied. The Ld.AR also submitted certain documents to establish that the land was agricultural land and beyond 8 kms. The LD.AR admitted that these documents were not filed before the ld.CIT(A) and AO. The Ld.AR requested to admit the additional evidence as it goes to the root of the issue. 6.2 The Ld.Departmental Representative(ld.DR) for the Revenue submitted that the assessee is a renowned Builder. He is in the profession of Development of land, construction of Buildings, sale of land for many years through his firms. The Ld.DR further submitted that the Assessee have support of legal experts and CAs. The ld.DR for the Revenue further submitted that only on verification of Bank accounts the Assessing Officer noted the transaction and confronted it to the assessee, then the assessee accepted it. Thus, the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der made under section 271(1)(c) what is required to be examined is the record which the officer imposing the penalty had before him and if that record can sustain the finding there had been concealment, that would be sufficient to sustain the penalty" Unquote. 7.2. Applying the above observation of the Hon'ble Supreme Court, the facts in this case are clear that the records shows there was concealment of income from sale of land. 7.3. Hon'ble Madras High Court in the case of Gangotri Textiles Ltd. Vs. DCIT [2020] 121 taxmann.com 171 (Madras) has held as under: Quote, "4. The assessment for the year under consideration, AY 2012-13 was completed under section 143(3) of the Act by order dated 12-3-2015. During the course of the scrutiny assessment, the Assessing Officer noticed that the assessee had sold two landed properties at Kalapatti and Dharapuram and the capital gain was worked out for both the properties at Rs. 1,37,31,142/-. However this was not admitted by the assessee in the return of income............ 14.We have carefully perused the penalty order dated 25-9-2015 and we find that the Assessing Officer considered all the factual aspects raised by the assessee and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/306 ITR 277(SC), which has been referred to and relied on in the case of N. G. Technologies Ltd. 17. As against the decision in the case of Jivanlal and Sons, a Special Leave Petition filed against the decision of the High Court which confirmed the penalty order passed by the Tribunal rejecting the assessee's explanation that it had claimed deduction on wrong advice given by the Chartered Accountant was dismissed. The operative portion of the judgment of the High Court of Bombay in Jivanlal& Sons v. Asstt. CIT [2019] 103 taxmann.com 207 is as follows: 2. We are unable to agree for more than one reason. The assessee is a Firm. It was throughout being advised and represented by a Chartered Accountant. The Tribunal rightly proceeded on the basis that a Chartered Accountant is deemed to be aware of the law and its intricacies. Being a professional, he could not have committed a mistake as was attributed to him. The tax paid is undisputedly an inadmissible expenditure from the profits of the business. Hence this amount should have been statutorily added back. Further, from the computation of income, the assessee added back certain inadmissible expenditure. However, he excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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