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2015 (6) TMI 366 - AT - Income TaxLevy of Penalty u/s.271(1)(c) - assessee has furnished return of income only after issuance of notice u/s.148 - While computing the long term capital gain the AO computed the market value of one of the land at ₹ 1,15,50,000/- by applying provisions of section 50C as against the value declared by the assessee at ₹ 91 lakhs - Held that:- For the purpose of invoking the provisions of Explanation 3 to section 271(1) the conditions enumerated are cumulative. The AO having issued a notice u/s.148 to the petitioner within the period specified u/s.153(1), the third condition namely that no notice u/s.142(1) or section 148 should have been issued within the period specified in sub-section 1 of section 153 is clearly not satisfied and therefore it was held that the failure on the part of the petitioner to furnish the return within the period cannot be deemed to be concealment within the meaning of Explanation 3 to section 271(1)(c) of the I.T. Act. See Chhaganlal Suteriya Vs. ITO [2011 (5) TMI 641 - Gujarat High Court] Even otherwise also we find the Pune Bench of the Tribunal in the case of Agricultural Produce Market Committee (2015 (6) TMI 347 - ITAT PUNE while deciding an identical issue had cancelled the penalty levied by the AO u/s.271(1)(c) holding the Explanation 3 below Sec. 271(1)(c) which is deeming provision, is applicable to the assessee as period mentioned u/s. 153(1) has expired and then only the assessee filed the returns of income but at the same time the assessee can still avail the Explanation 1 to establish the bonafide for not filing the returns of income within the time allowed u/s. 139 of the Act. In the present case, we are of the opinion that the explanation of the assessee is bonafide for not filing the returns of income for both these assessment years within the meaning of Explanation 1 below Sec. 271(1)(c) of the Act and in our opinion no penalty can be levied on the assessee on the charge of concealing the particulars of income for both the assessment years. - Decided in favour of assessee.
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