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Mr. Sudhakar Eknath Avhad, Pune Versus Assessing Officer of Income Tax, Ward – 6 (2) , Pune

2015 (9) TMI 1107 - ITAT PUNE

Levy of penalty u/s. 271(1)(c) - contention of the assessee is that when Capital Gains are computed by invoking the provisions of section 50C and the assessee has computed Capital Gains on actual sale price, it is not a case of filing of inaccurate particulars - Held that:- In the present case the assessee has not correctly disclosed the sale consideration in the original return of income. The penalty has not been levied for not adopting market price in accordance with the provisions of section .....

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naccurate particulars of his income. The assessee in his return of income suppressed the actual sale consideration of land and also the rental income, thus, making him liable for levy of penalty u/s. 271(1)(c) of the Act. - Decided against assessee. - ITA No. 1533/PN/2011 - Dated:- 24-6-2015 - SHRI R.K. PANDA AND SHRI VIKAS AWASTHY, JJ. For The Assessee : Shri M.K. Kulkarni For The Revenue : Shri P.S. Naik ORDER PER VIKAS AWASTHY, JM:- This appeal of the assessee is directed against the order of .....

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e Tribunal while deleting the penalty vide order dated 12-09-2013. The Tribunal after examining the factual position recalled its order on 10-10-2014 with the following observations: 4. Both the parties have been heard. We find that an error has crept in the order of the Tribunal on account of wrong appreciation of facts relating to the addition made on account of capital gains, in particular in relation to the adoption of sale consideration for the purposes of computing capital gains. Under the .....

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al in due course before the regular bench. In the light of this background, the appeal is listed before the Bench for de novo adjudication. 3. Before we proceed with the merits of the case it would be essential to examine brief facts of the case. The assessee is an individual and is conducting coaching class for law students. The assessee filed his return of income for the assessment year 2004-05 on 31-01-2005 declaring total income of ₹ 24,63,868/-. In the return of income, the assessee i .....

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nformation received in the purported revised return of income, the Assessing Officer made additions/disallowances. The Assessing Officer further observed that the second return of income was filed by the assessee beyond the time limits specified u/s. 139(5) of the Act, therefore, it cannot be considered as revised return of income. Penalty proceedings u/s. 271(1)(c) were initiated against the assessee for not disclosing income fully and truly in the return of income. Penalty u/s. 271(1)(c) of &# .....

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#8377; 29,00,000/-. The Long Term Capital Gain was computed on the consideration receipt. However, during the course of scrutiny assessment proceedings the Assessing Officer directed the assessee to adopt the market value of the land as per stamp valuation as required u/s. 50C of the Act. Accordingly, the assessee filed revised return declaring the sale consideration of ₹ 36,50,000/- and computed the Capital Gains thereon. The ld. Counsel for the assessee submitted that it is not a case of .....

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sale consideration of land. The assessee in the return of income filed on 02- 11-2006 has admitted the sale consideration as ₹ 36,50,000/- and has computed Long Term Capital Gains thereon. Whereas, in the original return of income the assessee had disclosed sale consideration as ₹ 29,00,000/- only. The ld. DR further submitted that the stamp duty of ₹ 2,38,030/- claimed as expenses for transfer of the property included penalty of ₹ 1,14,030/- paid for contravention of law .....

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s issued to the assessee, the assessee succumbed and disclosed the actual sale consideration of land and rental income. The ld. DR vehemently defended the impugned order and prayed for dismissing the appeal of the assessee. 6. We have heard the submissions made by the representatives of both the sides and have perused the orders of the authorities below. We have also examined the judgment on which the ld. Counsel has placed reliance. In the original return of income filed on 31-01-2005, the asse .....

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/-. It is pertinent to mention here that the Assessing Officer had asked the assessee to compute Long Term Capital Gains by adopting market value of land as per stamp valuation in accordance with section 50C of the Act i.e. ₹ 36,83,872/-. The contention of the ld. Counsel for the assessee is that the land has been actually sold for ₹ 29,00,000/-. The consideration of ₹ 36,50,000/- has been shown in the revised return of income for computing Long Term Capital Gains in accordance .....

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of sale of land. According to Assessing Officer the assessee should have adopted Stamp Valuation ₹ 36,83,872/- in view of S. 50C of the Income-tax Act. Further, both the Assessing Officer and the Commissioner of Income Tax (Appeals) have recorded in their findings that in the revised return, while computing the capital gains the sale consideration was adopted at ₹ 36,50,000/-. This fact has not been denied by the ld. Counsel for the assessee. 7. Thus, it is own admission of the asse .....

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cannot be accepted as revised return under the provisions of section 139(5), as the same was filed much after the lapse of time as specified under the Act. As per the provisions of section 139(5), the revised return can be filed before the expiry of one year of the end of relevant assessment year or before completion of assessment, whichever is earlier. In the present case the assessee should have filed revised return on or before 31-03-2006. Whereas, the return was filed by the assessee on 30-1 .....

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