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2020 (6) TMI 188 - ITAT AHMEDABADPenalty u/s 271(1)(c) - non disclosure of capital gain - whether the income was taxable in the assessment year 2012-13 as the land in dispute was handed over to the developer but the consideration was not received in the assessment year 2012-13? - HELD THAT:- Admittedly, in the present case the land has been handed over to the developer against the consideration which was fixed at ₹ 6 crores. Therefore, we are of the view that the transfer of the land has taken place in the assessment year 2012-13 in pursuance to the agreement dated 10th February 2012. The conditions as specified under section 53A of the transfer of property Act 1882 have been satisfied as discussed above. From the above, it is transpired that the land was transferred to the developer with the possession in the assessment year 2012-13 and therefore the transfer as per the provisions of section 2(47)(v) of the Act has taken place. Thus the income in our understanding on such transaction was taxable the assessment year 2012-2013. Whether the penalty can be levied in the year under consideration for the income offered to tax by the assessee in the year under consideration? - Question of the penalty arises when there is an income which was either concealed or furnished inaccurate particulars of income. Accordingly we hold that there cannot be any question of penalty as there was no taxable income in the hands of the assessee. As such, there cannot be any penalty merely on the ground that the assessee has offered some income during the assessment proceedings which was actually not chargeable to tax in the year under consideration. Assessee has not disclose the capital gain income in his income tax return on question, by the AO the assessee explained that such income was not offered to tax under the bona fides believe that the same would be taxable upon the completion of the entire project. This contention of the assessee was not doubted by the authorities below. Therefore it can be inferred that the assessee did not deliberately offer the impugned income in his income tax return. As such there was no deliberate/willful act on the part of the assessee either to conceal the income or furnish the inaccurate particular of income. We hold that there cannot be any penalty in the given facts and circumstances under the provisions of section 271(1)(c) of the Act for the reason that the assessee has not deliberately furnished inaccurate particular of income. Accordingly we set aside the finding of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed. Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [2020 (5) TMI 359 - ITAT MUMBAI]
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