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2016 (12) TMI 243 - ITAT MUMBAIPenalty u/s. 271(1)(c) - non declearion of short term capital gain on sale of land - assessee has claimed that the assessee has sold agricultural land - Held that:- The plea of the assessee that the land is an agricultural land lacks merit and is not borne out of the records and the assessee during assessment accepted that the land is not agricultural land but an industrial land. Thus, this explanation offered by the assessee that the said land was an agricultural land and hence not exigible to tax could not be held to be a bonafide explanation as the facts narrates a totally different story that the said land being under MIDC and a barren land having no source of water is not under cultivation , to take it out of ambit from the penalty provisions u/s 271(1)(c) of the Act. The plea of the assessee that the assessee has reduced the sale consideration of the said land from the Block of the asset is again and hence capital gains were not declared is again devoid of merits. The assessee held industrial land which was sold during the impugned assessment year and the land is not eligible for depreciation as per scheme of the Act . Thus, the contention of the assessee that the assessee reduced the sale consideration from the Block of asset is also not borne out from the records as on perusal of the financial statement of the financial year ended 31-03-2008 reveals that there was not block of asset created by the assessee for the land held by the assessee and this land was shown as separately under the schedule of investment(page 45/pb). The assessee has sold the said land vide sale deed executed in the previous year relevant to the impugned assessment year and also even during the succeeding assessment year, the assessee did not declare the said capital gain in the return of income filed with the Revenue. While on the other hand we order deletion of penalty levied by the authorities below on the allegation of tax sought to be evaded by the assessee on difference between full value of consideration as determined by DVO of ₹ 35.75 lacs and the actual sales consideration of ₹ 31.20 lacs as the same was brought to tax owing to deeming fiction created by Section 50-C of the Act and no evidence has been brought on record by the Revenue that any onmoney in excess of actual sale consideration of ₹ 31.20 lacs was actually received by the assessee which was not declared and disclosed to the Revenue in the return of income filed with the Revenue by the assessee.
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