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2015 (12) TMI 1457 - ITAT PUNE

2015 (12) TMI 1457 - ITAT PUNE - TMI - Penalty u/s. 271(1)(c) - as per revenue assessee had furnished inaccurate particulars with respect to sale of property at Igatpuri - AO invoked the provisions of section 50C for determining Long Term Capital Gain - Held that:- the addition has been made by invoking the provisions of section 50C. It is a well settled law that penalty cannot be levied on the additions based on assumptions, estimations and by invoking deeming provisions. It is an undisputed fa .....

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ssessment proceedings the provisions u/s. 50C can be invoked for making addition, however penalty cannot be levied on the basis of such deeming provisions. The Department cannot presume that there is a concealment or inaccurate particulars are furnished. There must be independent finding. Once, the assessee has furnished the explanation, the onus shifts on the Revenue to prove that the explanation furnished by assessee is wrong. We observe that the Revenue has not discharged the onus in proving .....

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ainst the order of Commissioner of Income Tax (Appeals)-II, Nashik dated 18-05-2012 for the assessment year 2008-09, confirming the levy of penalty u/s. 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. The brief facts of the case are : The assessee is an individual. The assessee filed his return of income for the assessment year 2008-09 on 28-09-2008 declaring taxable income of ₹ 1,03,290/-. The assessee sold land at Igatpuri on 18-04-2007. The assessee had 5 .....

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77; 1,92,311/-. The assessee purchased a residential flat for ₹ 6,48,020/- on 22-11-2007 and claimed exemption u/s. 54F against the Long Term Capital Gain from the sale of his share in land at Igatpuri. In scrutiny assessment proceedings, the Assessing Officer invoked the provisions of section 50C and determined the total sale value of land at Igatpuri at ₹ 21,39,000/-, 50% share of the assessee being ₹ 10,69,500/-. The assessee furnished valuation certificate obtained from the .....

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ed by the penalty order, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) vide impugned order confirmed the levy of penalty. Now, the assessee is in second appeal before the Tribunal impugning the levy of penalty. 3. None appeared on behalf of the assessee despite service of notice through RPAD. On the previous date of hearing i.e. 19-03-2015 none had appeared to represent assessee despite service of notice. Fresh notice o .....

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the Department vehemently supported the order of Commissioner of Income Tax (Appeals) in confirming the penalty. The ld. DR submitted that the assessee had furnished inaccurate particulars with respect to sale of property at Igatpuri. The Assessing Officer during assessment proceedings had furnished a valuation certificate from the Dy. Registrar, Igatpuri showing the value of land at ₹ 18,94,000/-, whereas, the assessee had disclosed the sale price of the land at ₹ 4,80,000/-. The As .....

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record. Penalty has been levied for under stating Long Term Capital Gain arising from sale of land. As per the sale deed the sale consideration is stated to be ₹ 4,80,000/-. The Assessing Officer sought valuation as per Stamp Valuation Authority which is ₹ 21,39,000/-. During the course of assessment proceedings, the assessee furnished valuation certificate dated 04-12- 2010 from the office of Dy. Registrar, Class-I, Igatpuri. According to the certificate the value of land was ₹ .....

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substantially. 6. We observe that the addition has been made by invoking the provisions of section 50C. It is a well settled law that penalty cannot be levied on the additions based on assumptions, estimations and by invoking deeming provisions. It is an undisputed fact that the assessee has disclosed the sale transaction of land in his return of income and has even computed Long Term Capital Gain thereon. The assessee had computed Long Term Capital Gain on the basis of sale consideration stated .....

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iculars are furnished. There must be independent finding. Once, the assessee has furnished the explanation, the onus shifts on the Revenue to prove that the explanation furnished by assessee is wrong. We observe that the Revenue has not discharged the onus in proving that the sale consideration stated in the sale deed is wrong. Therefore, in the facts of the case, we are of the view that penalty u/s. 271(1)(c) cannot be levied on such additions even if admitted by the assessee in quantum proceed .....

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n the case of Renu Hingorani Vs. ACIT (supra) are as under: 8. We have considered the rival contentions and relevant record . We find that the AO had made addition of ₹ 9,00,824/- being difference between the sale consideration as per sale agreement and the valuation made by the Stamp Valuation Authority. Thus, the addition has been made by the AO by applying the provisions of section 50C of the Act. It is evident from the assessment order that the AO has not questioned the actual consider .....

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