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2017 (9) TMI 1147 - AT - Income TaxPenalty u/s 271(1)(c) - willful evasion of tax by not furnishing accurate particulars of income - assessee did not declare the said income arising out of deemed capital gains u/s 54F(3) on the date of search also before the search party - Held that:- The assessee had filed revised return of income on 22-12-2009 wherein declaration of said deemed capital gains u/s 54F(3) was made and the AO thereafter framed an assessment bringing to tax income declared in the revised return of income. It is not the case, where the AO has made any additions which is not qua incriminating material but it is the assessee which when cornered by Revenue filed revised return of income declared and offered for tax deemed capital gains u/s 54F(3). The bank statements wherein the said deemed capital gains of ₹ 1,03,44,000/- was found credited is itself an incriminating material which justifies the chargeability to tax of the said income which was not earlier disclosed to the Revenue. This contention of the assessee is, therefore,rejected. A feeble attempt is made to contend that the said amount which was advanced to Neelkanth Mansion Private Limited was in the nature of loan and advances and hence Section 54F(3) is not applicable is a self destructible contention and is not acceptable. The assessee had in AY 2002-03 claimed exemption of ₹ 1,03,44,000/- u/s 54F on account of investments made in the booking of flats bearing No. 1301, 1302, 1401 and 1402 at Dhawalgiri Building from Neelkanth Mansion Private Limited and claimed exemption u/s 54F of the Act of ₹ 1,03,44,000/- for AY 2002-03 which was allowed by Revenue and now to contend that the said exemption was falsely and incorrectly claimed by filing incorrect return of income and fraud was perpetuated on Revenue by the assessee cannot be accepted. The assessee cannot be allowed to blow hot and cold. It is well settled that mere reflection in the account books of certain amounts in a particular manner is not decisive of the character of income of the assessee which is to be brought to tax in accordance with the provisions and mandate of the 1961 Act. Thus, mere reflection of the amount as loans and advances in the books will not change the character of booking of flat made by the assessee which was earlier accepted by Revenue also to be investment made in booking of flats bearing No. 1301, 1302, 1401 and 1402 at Dhawalgiri Building from Neelkanth Mansion Private Limited. This contention of the assessee stood rejected. Thus we set aside the appellate order of learned CIT(A) and uphold the order of the AO levying penalty u/s 271(1)(c) of the 1961 Act for the details reasons and discussions above. - Decided against assessee.
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