TMI Blog2016 (7) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that it is not a fit case for levy of penalty under Section 158BFA(2) of the Act. Accordingly, the orders of the lower authorities are set aside and the penalty levied under Section 158BFA(2) of the Act is deleted.- Decided in favour of assessee. - I.T.(SS) A. No. 16/Mds/2011 - - - Dated:- 1-7-2016 - Shri N.R.S. Ganesan, Judicial Member And Shri A. Mohan Alankamony, Accountant Member Appellant by : Shri S. Sridhar, Advocate Respondent by : Shri M. Murugaboopathy, Addl. CIT ORDER N.R.S. Ganesan, Judicial Member: This appeal of the assessee is directed against the order of the Commissioner of Income Tax (Appeals) II, Chennai, dated 17.01.2011 confirming the penalty levied by the Assessing Officer under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment made by the assessee in land at Karapakkam, the same was disclosed to the extent of ₹ 18,41,238/-. However, the actual amount found to be invested by the assessee was ₹ 71,48,000/-. According to the Ld. counsel, the assessee has disclosed the investment in the landed property in the VDI Scheme, 1997 to the extent of ₹ 18,41,238/-. Therefore, according to the Ld. counsel, the investment in the land was within the knowledge of Revenue authorities. Merely because there was a difference which was found subsequently in the investment made in the land that cannot be a reason to levy penalty. According to the Ld. counsel, after the death of the assessee Shri K.C.G. Verghese, the legal representative could not trace ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. D.R., the penalty is levied only on the assessee for not furnishing the particular details and not on the legal representative. The penalty is to be recovered only from the assets of the deceased assessee. In order to comply with the procedural aspect, the legal representative was given an opportunity as provided in Section 159 of the Act. Therefore, the death of the assessee, namely , Shri K.C.G. Verghese cannot be a reason for not levying penalty. 4. Shri M. Murugaboopathy, the Ld. D.R. further submitted that there was a difference between the assessed income and the income returned by the assessee. Therefore, it is for the assessee to explain why such a difference has come. In the absence of any proper explanation on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome determined by the Assessing Officer exceeded the undisclosed income disclosed by the assessee in the return. The fact remains that the deceased assessee has disclosed the cost of acquisition of land in the VDI Scheme to the extent of ₹ 18,41,238/-. The seized material, which was identified during the course of search operation, disclosed the investment to the extent of ₹ 71,48,000/-. Therefore, the investment made by the deceased assessee is very much available before the assessing authority even before the date of search. Therefore, the deceased assessee may be in a better position to explain why ₹ 18,41,238/- was disclosed in the VDI Scheme, 1997, when the actual investment was identified at ₹ 71,48,000/-. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple is equally applicable in respect of penalty levied under Section 158BFA(2) of the Act. Therefore, merely because the legal representative withdrew the appeal pending before this Tribunal after the expiry of the assessee Shri K.C.G. Verghese and the legal representative is not in a position to explain the source of investment, this Tribunal is of the considered opinion that that cannot be a reason for levying penalty under Section 158BFA(2) of the Act. This Tribunal is of the considered opinion that it is not a fit case for levy of penalty under Section 158BFA(2) of the Act. Accordingly, the orders of the lower authorities are set aside and the penalty levied under Section 158BFA(2) of the Act is deleted. 7. In the result, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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