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2018 (1) TMI 989 - ITAT DELHIPenalty proceedings u/s 271(1)(c) - deemed dividend addition u/s 2(22)(e) - additions u//s 69B - Held that:- As addition stands deleted by the Tribunal and therefore, penalty on said addition cannot be sustained. Accordingly, the same is directed to be deleted Difference in the purchase value of the plot as shown in the registered sale deed and the estimate made by the Valuation Officer to whom reference was made by the AO - Held that:- The addition has been made purely on the basis of the estimate given by the Valuation Officer and the value of the transaction shown in the registered sale document. If no material has been brought either by way of inquiry by the AO or some tangible information has into his knowledge that the purchase consideration of ₹ 38,50,000/- for the plot No. D-101 is less or assessee has paid extra than what has been mentioned in the registered sale document, then no penalty for either concealment of income or furnishing of inaccurate particulars can be levied. Though section 69B is a deeming fiction but in the matter of penalty proceedings, such deeming fiction cannot be extended so as to hold assessee guilty of concealment of income or furnishing of inaccurate particulars when the addition on account of deeming fiction is based on some kind of estimate given by a Govt. Valuer. If nothing incriminating is found against the assessee, then such a valuation report alone cannot be the basis for levy of penalty. Apart from that the assessee’s explanation that the plot No. D-101 was adversely located in comparison to plot no. D-102 has not been rebutted and it is quite possible that two similar adjacent plots may have different market value, because of different location in terms of direction, facing of the plot, geometrical shape, Vastu factors, etc. All these factors in India do have impact on the value of the property. Such a probable factors cannot be ignored and even under Explanation 1, the assessee’s explanation does constitute probable explanation which has not been found to be incorrect by way of any material on record. Thus, we delete the penalty
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