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TMI Blog2023 (1) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 271(1)(c) of the Act merely for reason that the consideration shown in the computation of capital was less than the value adopted for stamp duty or the value determined by the DVO under the provision of section 50C. Therefore, we hereby set aside the finding of the CIT(A) and direct the AO to delete the penalty levied under section 271(1)(c) of the Act. Hence the ground of appeal of the assessee is hereby allowed. - ITA No. 190/Rjt/2022 - - - Dated:- 23-11-2022 - SHRI WASEEM AHMED, ACCOUNTANT MEMBER, AND MS. MADHUMITA ROY, JUDICIAL MEMBER Assessee by : Shri R.D. Lalchandani, A.R Revenue by : Shri B.D. Gupta, Sr. D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income was issued. The assessee failed to make any submission/response to such notice. Hence, the AO in the absence of any explanation and submission from the assessee levied penalty of Rs. 46,105/- under section 271(1)(c) being an amount equal to 100% of tax sought to evaded on account of furnishing inaccurate particulars of income. 4. The aggrieved assessee preferred an appeal before the learned CIT(A). 5. The assessee before the learned CIT(A) submitted that he received sale consideration of Rs. 4 Lakh only and offered capital gain on the same. However due to legal fiction created under section 50C of the Act, additional capital gain was worked out by the AO. The assessee, accordingly, contended that no penalty under section 271( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal before ITAT, which is still pending. Consequently, the AO levied penalty of Rs.46,105/- u/s 271(1)(c) for furnishing of inaccurate particulars of income by the appellant. 6.3 The appellant is now in appeal against levy of penalty u/s 271 (1 ){c) of the Act. As seen from the facts of the case, as per the provisions of section 50C(2) the AO was required to adopt the stamp duty value. However, taking into account the objection raised by the appellant, he adopted the value determined by the DVO which is less than the stamp duty value. Hence, the Ld.ClT(A) has upheld the addition and dismissed the appeal filed against the assessment order. It is a fact that the appellant though advised by a tax professional has chosen to decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties and perused the materials available on record. The fact of the case has been elaborated in previous paragraph and there no dispute with regard to the facts. Hence for the sake of brevity and convenience, we are not inclined to repeat the same. The question before us is whether any addition made because of legal fiction created under the Act i.e. to say addition made under section 50C of the Act will amount furnishing inaccurate particular of income. In this connection, we note that the Hon ble Courts have held that there cannot be any penalty on the amount representing the deemed consideration. In this regard, we find support and guidance from the judgment of Hon ble Gujarat High Court in case of PCIT vs. Sun on Peak Hotel (P) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation by Mr.Vimal Gupta really does not arise in the peculiar facts of the case. We leave that question and contentions based thereon open for being canvassed in an appropriate case. The Tribunal's order even if containing any reference to some deeming provision will not preclude or prevent the Revenue from raising such contentions. With this clarification and finding that the Tribunal's order does not raise any substantial question of law that we proceed to dismiss the Appeal. It is, accordingly, dismissed. No costs. 10.2 Respectfully following the ratio laid down in the above mentioned cases, we are of the opinion that the assessee cannot be made subject levy of penalty under section 271(1)(c) of the Act merely for reason that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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