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TMI Blog2023 (7) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... ulars or concealed any income. Assessee has filed all relevant materials for determining the income in his hands. CIT(A) has not unearthed any details/ evidences that has lead to enhancement of income in the hands of the assessee. In fact the enhancement of income by the Ld.CIT(A) is due to disallowance made by the Ld.CIT(A) of the commission paid and the cost of improvement claimed by the assessee for the reason that the assessee did not collect the PAN of the persons to whom the payments were made. There is no doubted that the payments were made through banking channels. Merely because the assessee did not collect PAN details of the Payees, and the bills and vouchers of most of the payments, the disallowance was made. Thus assessee cannot be penalized either for concealment of particulars of income' or 'furnishing of inaccurate particulars of income'. Decided in favour of assessee. - IT(IT)A No. 382/Bang/2022 - - - Dated:- 1-12-2022 - BEFORE SMT. BEENA PILLAI, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER For the Appellant : Smt. Suman Lunkar, CA For the Respondent : Shri K.R. Narayana, Addl. CIT (DR) ORDER PER BEENA PIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty having being levied on erroneous appreciation of facts and wrong application of law requires to be cancelled. 5.4 In any case and without prejudice, the levy of penalty is erroneous and excessive and is therefore liable to be deleted. 6. In view of the above and on other grounds to be adduced at the time of hearing it is requested that the impugned order be quashed or atleast the penalty levied be cancelled. 2. Brief facts of the case are as under: 2.1 Assessee filed his original return of income for year under consideration on 27/09/2016 declaring total income of Rs. 1,61,95,750/-. For the year under consideration, the Ld.AO noted that the assessee had derived income from capital gains. The case was selected for scrutiny and mandatory notices u/s. 143(2) of the Act was issued to the assessee. 2.2 Various notices subsequently were issued to the assessee on various dates however, the assessee did not file any response in lieu of the same. It was informed by the email to the assessee that, the return of income filed declared capital gains of Rs. 1,48,57,151/-, whereas as per AIR data in the case of the assessee available with the department, the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and cost of acquisition of the land sold was arrived at Rs. 11,41,090/-. The Ld.CIT(A) was of the opinion that the assessee was eligible for the proportionate cost of acquisition and allowed indexation being 1024/497. 3.5 The Ld.CIT(A) further noted that assessee claimed that land purchased underwent lot of improvement from 31/12/2005 to 14/11/2006 in respect of which, bank statement account was submitted. The Ld.CIT(A) noted that, the assessee had withdrawn Rs. 2 Lakhs during A.Y. 2006-07 and Rs. 17.50 Lakhs during A.Y. 2007-08. As assessee failed to submit the details of the work executed, purchase of any commodities / any labour payments, contract payments, cost of improvement claimed was disallowed. 3.6 The Ld.CIT(A) thus computed the long term capital gains after granting deduction claimed by assessee of the investments made u/s. 54EC amounting to Rs. 50 Lakhs as under: Consideration received on Sale of 5.85 Ares of land on 16.7.2014 3,75,83,000 Commission claimed paid of Rs. 7,51,660 Disallowed Indexed Cost of acquisition of 5.85 Ares of land on 23.9.2005 23, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the Assessing Officer or the Commissioner (Appeals) or the Commissioner in the course of any proceedings under this Act, is satisfied that any person- ................................................................ (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty,- (ii). (iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income Explanation 1.-Where in respect of any facts material to the computation of the total income of any person under this Act,- (A) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Deputy Commissioner (Appeals) or the Commissioner(Appeals) to be false, or (B) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bonafide and that all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty. The penalty u/s 271(1)(c) of the Act is leviable if the AO is satisfied in the course of any proceedings under this Act that any person has concealed the particulars of his income or furnished inaccurate particulars of such income. 9. In the present facts of the case the Ld.CIT(A) has not made out a case where the assessee has filed any inaccurate particulars or concealed any income. Assessee has filed all relevant materials for determining the income in his hands. The Ld.CIT(A) has not unearthed any details/ evidences that has lead to enhancement of income in the hands of the assessee. 10. In fact the enhancement of income by the Ld.CIT(A) is due to disallowance made by the Ld.CIT(A) of the commission paid and the cost of improvement claimed by the assessee for the reason that the assessee did not collect the PAN of the persons to whom the payments were made. There is no doubted that the payments were made through banking channels. Merely because the assessee did not collect PAN details of the Payees, and the bills and vouchers of most of the payments, the disallowance was made. 11. In our opinion, in the present facts, assessee cannot be penalized either for concea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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