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2019 (9) TMI 1074 - ITAT MUMBAIPenalty u/s 271(1)(c) - STCG in the hands of the assessee u/s 50 - HELD THAT:- It is the claim of the assessee that as neither the ‘block of asset’ of the gala had ceased to exist during the year under consideration, nor the full value of consideration received or accruing as a result of transfer of the aforesaid gala exceeded the modified actual cost of the assets falling within the said block of assets, therefore, no STCG on the sale of the said gala viz. Sadhana Industrial Estate did arise in the hands of the assessee as per the mandate of Sec.50 of the Act. We find that the aforesaid new line of argument which was for the very first time raised by the assessee while assailing the penalty imposed u/s 271(1)(c) before the CIT(A), was however rejected by the appellate authority for the reason that the said claim of the assessee was not discernible from the facts available on record. CIT(A) had categorically observed that the assessee had failed to file the ‘balance sheet’ or the schedule of ‘fixed the assets’ to support its aforesaid claim. CIT(A) declined to summarily accept the aforesaid unsubstantiated claim of the assessee and upheld the penalty imposed by the A.O u/s 271(1)(c) of the Act. We find that even before us the ld. A.R had adopted a similar approach and except for reiterating his aforesaid claim, had however, failed to place on record the requisite material which would irrefutably support the factual position so claimed by him. Admittedly, we are principally in agreement with the claim of the ld. A.R and are persuaded to subscribe to his claim that in the backdrop of the aforesaid facts as had been canvassed by him before us, no STCG would arise in the hands of the assessee under Sec. 50 of the Act. We cannot remain oblivious of the fact that the said claim of the assessee which is bereft of any supporting documentary evidence that would substantiate the veracity of its aforesaid claim, cannot be summarily accepted on the very face of it. We thus, in all fairness, are of the considered view that the matter requires to be revisited by the A.O. In case the aforesaid factual position as had been demonstrated by the assessee before us is found to be in order, then the penalty imposed by the A.O under Sec. 271(1)(c) shall stand vacated. We thus in terms of our aforesaid observations for the aforesaid limited purpose restore the matter to the file of the A.O for fresh adjudication. - Appeal of the assessee is allowed for statistical purposes
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