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2013 (6) TMI 547 - AT - Income TaxPenalty u/s.271(1)(c) - assessment order passed u/s.143(3) r.w.s.153C - During the course of search and seizure action at the residential premises of Sri Chandrakant Kankaria, a real estate broker certain documents in loose paper were seized with some belonging to the assessee - assessee by not offering the commission received has concealed the income - Held that:- Since the assessee was due to receive commission on the basis of sale of plots and since 7 plots have been sold during the F.Y. 2006-07 relevant to A.Y. 2007-08, therefore, the assessee was supposed to offer commission income on account of sale of the above plots. Therefore, by not offering the commission income on account of sale of the above plots during A.Y. 2007-08 there is concealment of particulars of income and penalty is leviable on account of commission relatable to sale of the above plots. Argument of the assessee that the same shall be shown once all the plots are transferred is not a valid explanation as the assessee cannot shift the year of taxability of the commission income after the sale of the particular property by explaining that the same shall be offered to tax once all the plots are transferred. If the above proposition of the assessee is accepted then in that case an assessee can indefinitely shift his tax burden say by not transferring one plot out of 1000 plots where 999 plots have been sold and commission income is received. Therefore, assessee was supposed to have declared commission income of plots which were sold after due registration. By not offering the commission income the assessee has furnished inaccurate particulars of income for which penalty u/s.271(1)(c) is leviable. Minimum penalty being 100% of the tax sought to be evaded on account of non-disclosure of commission income on account of sale of the above plots should be levied. AO shall verify the above details including any left over item and compute the commission income relatable to sale of these plots, calculate the tax on that and levy the penalty u/s.271(1)(c). So far as the balance plots are concerned they all relate to F.Y. 2007-08, 2008-09 and 2009-10 and do not relate to any of the years under appeal. Therefore, merely because the assessee has received the commission income in the preceding years which has been shown as advance penalty u/s.271(1)(c) should not be levied since the registration of the plots, which is a pre- condition for getting the commission, is yet to be done. Thus appeal for A.Y. 2007-08 is partly allowed for statistical purposes and appeal for other years are allowed.
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