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TMI Blog2014 (7) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty by the Ld. CIT(A) whereas in revised ground the challenge is with reference to sustaining of penalty by the Ld. CIT(A), which has been allowed. So objection of the Department in this regard gets overruled. 2. Brief facts of the case are that the assessee is engaged in construction activities and filed return for the relevant assessment year on 16.10.2003 declaring an income of Rs. 75,980/-. A survey u/s. 133A of the Act was conducted at the premises of the assessee on 25.11.2003 and case was selected for scrutiny. When notice u/s. 143(2) of the Act was issued, the assessee filed its revised return declaring total income of Rs. 1,79,090/- which was assessed at Rs. 11,40,200/- as against revised income of Rs. 1,79,090/- after making ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(1)(c) of Rs. 3,02,749/- on the income of Rs. 9,61,110/- allegedly sought to be evaded alleging that the assessee has not given any explanation or documentary evidence for the net profit shown during the year and that the assessee was not reflecting the full sale consideration received by him. That the assessee had deliberately and intentionally omitted the facts in order to hide the actual sale value of flats in question and hide the facts with regard to cost of construction involved. However, it is neither a case of failure of assessee to submit the explanation nor it is a case where the explanation submitted was not bonafide. The dispute is not on the declaration of receipts and expenses. It is on account of difference of opinion with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paryavaran Complex since renovation was done on the said floor upon buyers' instruction and the area of the floor was larger than other floors. The AO computed the cost of construction of the 1st floor by allocating the cost equally to all the floors whereas the assessee allocated the same according to the area of floors and taking the effect of renovation into account. Thus, the difference in cost of* construction is account of difference in opinion between the assessee and the A.O. The allocation of cost made by the assessee was indeed a bonafide one. 1.4 That the AO has allocated the cost of construction equally among Ground Floor, First Floor, Second Floor and Third Floor. The A.O has erred on the fact that the Ground Floor was alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was confirmed following the method on yearly basis. Following completion method, the profit per flat comes out to Rs. 1,73,341, whereas the assessee has declared a profit of Rs. 1,88,446/-. 1.8 That the assessee substantiated three alternate calculations to show that no income beyond the stated income was earned during the year under consideration. 1.9 That the revenue did not accept the explanation of the assessee but brought nothing on record to prove that the explanation was false or incorrect. 1.10 That for levy of penalty, totality of circumstance and facts needs to be considered. Neither has the total cost incurred nor the total amount received by the assessee been disputed. The difference is merely on account of difference of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed in quantum proceedings. Thus, the penalty levied on the same is unjustified, and should be deleted." 3. Ld. DR in his written submissions firstly challenged the wording of the ground raised which has since been revised by the assessee and the same has been accepted by the Bench as mentioned in para 1.1 of this order while overruling the objection of the Department. 4. Now coming to the merits of the case, Ld. DR while reproducing the conclusions of the order of the ITAT and the quantum appeal has further submitted that the situation with reference to adducing the evidence to dispel the conclusion of the contumacious conduct on the part of the assessee as remained unchanged during the penalty proceedings. Ld. CIT(A) has confirmed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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