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2016 (3) TMI 359 - ITAT JAIPUR

2016 (3) TMI 359 - ITAT JAIPUR - TMI - Penalty u/s 271(1)(c) - calculation of sale consideration - assessee is the sole owner of the property and has received the full consideration of the property, and therefore liable to be taxed as capital gain under section 50C - Held that:- As gone through the judgments in the matter of Renu Hingorani vs. ACIT [2010 (12) TMI 795 - ITAT MUMBAI ] and CIT vs. Madan Theatres Ltd.[2013 (6) TMI 96 - CALCUTTA HIGH COURT ]. On perusal of the case law mentioned in t .....

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he penalty as there is no concealment of income or inaccurate particulars of income furnished in the return. - Decided in favour of assessee - ITA No.40/JP/2014 - Dated:- 29-1-2016 - SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM For The Revenue : Shri Kailash Mangal (JCIT) For The Assessee : Shri Ajay Somani (C.A.) ORDER PER SHRI LALIET KUMAR, J.M. This is an appeal filed by the assessee against the order or ld. CIT (A) Ajmer dated 18.11.2013 for the Assessment Year 2006-07. The assessee has ra .....

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8,666/- filed on 30.10.2006. A notice under section 148 was issued to the assessee on 03.07.2008 which was duly served upon the assessee and in response the assessee vide letter dated 24.07.2008 has stated that the return filed on 30.10.2006 may be treated as filed in compliance to above said notice. Thereafter, a notice u/s 142(1) along with questionnaire was issued on 12.10.2009. In response thereto the assessee has furnished the information and submitted the documents. In the course of assess .....

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behalf of the assessee has held that the assessee is the sole owner of the property and has received the full consideration of the property, and therefore liable to be taxed as capital gain under section 50C of the IT Act taking the value of the property at ₹ 1,08,91,151/- and thereby calculated the long term capital gain to the tune of ₹ 70,69,482/- vide order dated 29.12.2009. 3. Aggrieved, the assessee filed appeal before ld. CIT (A), who vide his order dated 28.03.2011 had direct .....

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lows :- Where in the assessment for any year, a capital gain arising from the transfer of a capital asset, being land or building or both, is computed by taking the full value of the consideration received or accruing as a result of the transfer to be the value adopted or assessed by any authority of a State Government for the purpose of payment of stamp duty in accordance with sub-section (1) of section 50C, and subsequently such value is revised in any appeal or revision or reference referred .....

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ence. Pursuant thereto, the AO, in view of the directions issued by the ld. CIT (A) and after receiving the response from the IG (Stamps), has passed an order under sec. 155(15) of the IT Act and thereby has determined the value of the property at ₹ 1,08,91,151/- and thereby re-affirmed the long term capital gain at ₹ 70,69,482/-. The relevant para of the assessment order passed under section 155(15) of the IT Act is reproduced herein below :- In view of the above and also as per dir .....

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. The case adjourned to 19.06.2012. The assessee further asked for adjournment on 19.06.2012 and 29.06.2012. The case finally fixed for hearing on 11.07.2012. On this date neither anybody attended nor any written reply has been filed. Therefore, the order passed u/s 143(3)/148/251 for the A.Y. 2006-07 dated 18.07.2011 is rectified u/s 155(15) of the I.T. Act, 1961 which speaks as under - Where in the assessment for any year, a capital gain arising from the transfer of a capital asset, being land .....

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to compute the capital gain by taking the full value of the consideration to be the value as so revised in such appeal or revision or reference; and the provisions of section 154 shall, so far as may be, apply thereto, and the period of four years shall be reckoned from the end of the previous year in which the order revising the value was passed in that appeal or revision or reference. 4. The assessee has challenged the order passed by the AO in the appellate proceedings. However, the Appellate .....

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de by the AO of long term capital gains of ₹ 70,69,482/- in the appeal before the CIT (A), Ajmer. The ld. CIT (A) vide order dated 28.03.2011 in Appeal No. 186/2009-2010 decided the issue with the directions as reproduced by the AO in the present order. Further, ld. CIT (A) had also passed the order u/s 154 on 17.10.2011 in respect of order dated 28.03.2011. In is apparent that the various issues involved regarding the quantum have already been dealt and decided by my predecessor. The same .....

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ending before Rajasthan Tax Board Ajmer. However, it is apparent from the order of the AO that assessee had made the reference before the IG Stamps who had determined the value of the property at ₹ 1,08,91,151/-. On the receipt of said information, the AO has followed the directions as contained in the order of the CIT (A) dated 28.03.2011. It can not be claimed that after the finalization of the reference before IG Stamps, no order should have been passed by the AO as per the directions o .....

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s mentioned in para 3.3 of his order :- 3.3. I have considered the contention of the appellant as well as the assessment order. It is seen that the assessee had sold the Nanki Bhawan, Ajmer for a sum of ₹ 27 lacs while the registrar of the properties registered it at ₹ 1,08,91,151/-. The assessee has pointed out that the sale consideration received by the assessee was ₹ 27 lacs only and not ₹ 1,08,91,151/- as adopted by the stamp valuation authorities which is proved by t .....

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ee ITA No 997/MDS/2012 in support of his contentions. In such context, issue regarding levy of the penalty u/s 271(1)(c) has been decided by Hon ble ITAT Mumbai in ITA No 2210/Mumbai/2010 A.Y. 2006-07 in the case of Renu Hingorani vs ACIT, Range 19 (3) 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 Valu .....

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ount to concealment of income or furnishing inaccurate particulars of income. It is also not the case of the revenue that the assessee has failed to furnish the relevant record as called by the AO to disclose the primary facts. The assessee has furnished all the relevant facts, documents/material including the sale agreement and the AO has not doubted the genuineness and validity of the documents produced before him and the sale consideration received by the assessee. Under these facts and circu .....

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f CIT vs. Reliance Petroproducts Pvt Ltd (supra), the penalty levied u/s 271(1)(c) is not sustainable. The same is deleted. Above view is also supported by the decision of Hon ble Kolkata High Court in the case of CIT Kol-IV vs. Madan Theatres Ltd. in GA No. 684 of 2013, ITT No. 62 of 2013 where decision of ITAT deleting the penalty levied on the basis of stamp duty valuation was upheld. In view of above discussion, the penalty is not leviable on the basis of value adopted by the Registration Au .....

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