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2022 (5) TMI 363 - ITAT RAJKOTLevy of penalty u/s 271(1)(c) - AO held that absence of any explanation regarding the receipt of money, which is in the exclusive knowledge of assessee, it leads to an adverse inference against the assessee and is statutorily considered as amounting to concealment of income under the first part of clause (A) of Explanation to section 271(1)(c) - HELD THAT: - As in case of transfer of mortgaged property, if the consideration does not flow to the assessee, then the same would not amount to transfer of asset and no capital gains tax would accrue in the hands of the assessee. The case of CIT v. Smt. Thressiamma Abraham[1996 (9) TMI 60 - KERALA HIGH COURT] has held that since purchasers paid entire sale consideration directly to creditors and it was only thereafter mortgaged property was released, it could be said that sale consideration was diverted to creditors by overriding title and, in such circumstances, no capital gains accrued to assessee. We see that there are conflicting judicial precedents on the issue under consideration before us and therefore, it may be inferred that the issue before us is one in which two views are possible. Further, we note that the Hon'ble Gujarat High Court has also admitted the assessee's appeal in quantum proceedings. We are of the considered view that the instant case is not a fit case for levy of penalty u/s. 271(1)(c) of the Act. The issue is clearly debatable on which various Courts have taken conflicting views. The assessee's view is also one which is a plausible view as held by various appellate forums. Therefore, in our considered view, the Ld. CIT(A) has erred in law and in facts in confirming penalty u/s. 271(1)(c) of the Act. We accordingly direct the Revenue to delete penalty u/s. 271(1)(c) of the Act imposed on the assessee. - Decided in favour of assessee.
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