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2022 (1) TMI 425 - AT - Income TaxGain on sale immovable property - property jointly hold - correct head of income - capital gain or business income - HELD THAT:- There is no evidence to show that the purchase and sale of the property was with an intention of Investment.CIT(A) has treated the transaction to be an adventure in the nature of trade. The facts and circumstances, as obtaining in this case, do show the intention of assessee to resell the land and not to hold the same. It was just within a period of four months from the date of purchase that the assessee sold the land. Considering the intention of the assessee as emanating from the above circumstances, we uphold the action of the ld. CIT(A) in treating the sale transaction as an adventure in the nature of trade. The impugned order is therefore, confirmed on this score. Unexplained cash deposits into bank account - HELD THAT:- Having regard to the facts of the case and considering the quantum of amount involved with reference to other attending circumstances, we are satisfied that the deposit of ₹ 3 lakhs cannot be considered as emanating from any undisclosed sources, for which the ld. CIT(A) has accepted the explanation only to the extent of ₹ 75,000. There is no reason as to how this magical figure of ₹ 75,000 came into being. As such, we order to delete the remaining addition . Penalty imposed u/s 271(1)(c) - HELD THAT:- While disposing of the quantum appeal, we have deleted the addition sustained in the appeal on account of cash deposit in the bank account. In so far as the sustenance of addition by the ld. CIT(A) amounting to ₹ 21,25,000 is concerned, we find that the assessee has not been provided an adequate opportunity of hearing to show cause as to why the penalty should not be imposed. A case was made out before the ld. CIT(A) that some dispute was going on between the assessee and his counsel representing the matter before the AO, as a result of which proper representation could not be made before the AO. Considering the entirety of the facts of the case, we are of the considered opinion that it would be in the fitness of things if the impugned order is set aside and the matter is restored to the AO. We order accordingly and direct him to provide an opportunity to the assessee for putting forth his point of view before imposing the penalty.
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