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Mahesh N. Thakkar Versus Assistant Commissioner of Income-Tax-1(1)

2015 (5) TMI 234 - BOMBAY HIGH COURT

Long term capital gain working - Valuation of the property - Appellant claims that he was owner of 1/3rd share in a immovable property - penalty under section 271(1)(c) as the capital gain had been computed on inadvertent assumption that the said property had been acquired prior to 1st April, 1981, while it had in fact been acquired on 24th August, 1981 - non granting of personal hearing - Held that:- The only thing that can be said about the argument desperately canvassed before us is that the .....

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l's order can such a ground be raised. Even if such a plea can be raised now, we do not find that there is any prejudice caused, as all the fact finding authorities have gone elaborately through the contentions raised by the Assessee. There is no miscarriage of justice. No substantial question of law - Decided against assessee. - Income Tax Appeal No. 1275 of 2013, Income Tax Appeal No. 1276 of 2013 - Dated:- 27-4-2015 - S. C. Dharmadhikari And A. K. Menon,JJ. For the Petitioner : Mr Nishit .....

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property and by an agreement dated 15th June, 2004 for a consideration of ₹ 5,23,00,000/- to M/s. Reliance Communication Infrastructure Ltd. 3. For the assessment year 2005-06, a return of income was filed on 31st October, 2005 declaring total income at ₹ 62,97,067/-. In computation of income, the Appellant disclosed that the property at Mumbai had been sold for the above consideration to the above entity. The Appellant claimed that the property had been purchased prior to 1st April .....

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essment proceedings on 28th December, 2008, in which, the Appellant appears to have drawn attention to the computation of capital gain and stated that the capital gain had been computed on inadvertent assumption that the said property had been acquired prior to 1st April, 1981, while it had in fact been acquired on 24th August, 1981. The reason for this alleged inadvertence is that there had earlier been prolonged negotiations before the issuance of the letter of allotment. The Appellant stated .....

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s made and that is why penalty proceedings have been initiated. The order passed on 30th June, 2008 under section 271(1)(c) of the Income Tax Act, 1961 holding that the Appellant had filed inaccurate particulars of income with regard to capital gain. He computed the amount of capital gain short offered at ₹ 20,57,010/- and levied penalty of 100% of the tax allegedly sought to be evaded thereon. 5. Against this order of the Assessing Officer, Appeal was preferred before the Commissioner of .....

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d in the original computation of income. Instead, the Tribunal held that there was a pointed query from the Revenue and that is how all these facts were referred by the Appellant. Therefore, the basis in the Commissioner's finding that it was a suo moto act of the Appellant is erroneous. That does not exist once the disclosure came on a query from the Revenue. 8. It is this argument which was canvassed before us and through out. We have noted this argument in our order dated 13th April, 2015 .....

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its that this reasoning is fallacious and defective fundamentally. It relies on the fact that the assessee disclosed the particulars of the long term capital gain only when a pertinent query was raised by the Assessing Officer. Mr. Gandhi submits that this is factually incorrect. The assessee on his own and voluntarily disclosed all the facts and particulars in relation to this gain and the record would substantiate this statement. 3. Mr. Gandhi, therefore, seeks time to produce an extract of th .....

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ly accepted and known procedure. We had earlier clarified to Mr. Gandhi that this Court cannot interfere with the orders of the present nature by probing the factual position. If the factual position is otherwise or assumed to be such or termed to be against the Assessee without any legal and valid basis, then, possibly the argument of perversity on the part of the Tribunal can be raised. However, even when the order of the Tribunal is termed as perverse, it must be established and in the legal .....

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l has found the position to be otherwise and when no material is produced by Mr. Gandhi, then, the order of imposition of penalty passed by the Assessing Officer and confirmed by the Tribunal calls for no interference. 11. We had intimated this position to Mr. Gandhi on the earlier occasion. Despite detailed arguments on the earlier occasion, Mr.Gandhi would rely upon two Judgments, one rendered by the Hon'ble Supreme Court in the case of Price Waterhouse Coopers Pvt. Ltd. vs. Commissioner o .....

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0A(7) so paid and the Assessee claimed a deduction thereon in its return of income. This was contrary to the position, namely that the provision towards such gratuity was made and that was not allowable. According to the Assessee, the deduction was inadvertently made in the return of income despite such particulars in the form having been entered. It is much later that the Assessing Officer issued a notice under section 148 of the Income Tax Act, 1961 on 22nd January, 2004 for reopening assessme .....

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eme Court. This entire finding and in favour of the Assessee before the Hon'ble Supreme Court came in the backdrop of such peculiar and unique facts. We do not see how this Judgment can assist the Assessee in this case and for questioning the conclusion reached by the Tribunal. The Tribunal has reached this conclusion in para 13 of the order under challenge. The Tribunal has found that this is not a case where the Assessee had voluntarily revised the long term capital gain. It is in these ci .....

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