TMI Blog2018 (6) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... agricultural operations, which was missing in the present case. In these circumstances, the assessee acting on legal advice, readily came forward and offered the capital gains without resorting to litigation. On weighing the circumstances, we are of the view that the onus of bonafide therefore, in our view, is broadly discharged. The ‘satisfaction’ in the course of the assessment was formed for alleged ‘furnishing of inaccurate particulars of income’. The penalty notice does not specify the nature of default and thus suffers from vice of ambiguity. The AO, however, in departure with the satisfaction formed in the assessment proceedings, went on to impose penalty on a different ground i.e. concealment of particulars of income. Ostensibly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of land parcel bearing Survey No. 79/2 as per registered sale deed dated 05.08.2011. The land was stated to be agricultural land. The said land was earlier purchased by the assessee alongwith one Smt. Parulben Kanubhai Patel on 15.04.2010. The assessee worked out short term capital gains at ₹ 71,90,875/- on sale and offered the same for taxation by way of revised computation. It was pleaded by the assessee before the AO that the capital gain was inadvertently remained to be offered for taxation while filing the return of income. On the basis of working of capital gains provided by the assessee in the course of assessment, the income offered by way short term capital gain amounting to ₹ 71,90,875/- as offered by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. It was submitted that the transactions of land sale also does not form part of the AIR information and therefore such transactions of sale was not within the knowledge of AO before it was brought out to his notice. The assessee, in short, contended before the AO that it is a case of pure omission without any deliberate intent to conceal the income. The AO however did not find any merit in the innocence pleaded by the assessee. It was alleged by the AO that assessee had calculated short term capital gain of ₹ 1,70,000/- on sale of agricultural land arising from other transactions and therefore the contention of the assessee that he was not aware about the tax liability on sale of agricultural land is untrue and not tenable. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Hon ble Gujarat High Court in case of A. M. Shah Co. vs. CIT 238 ITR 415 (Guj.) and the decision of the Hon ble Supreme Court in the case of K. P. Madhusudan 251 ITR 99 (SC) and held that having regard to the difference between the return of income filed and the assessed income, the onus is on the assessee to rebut the inference of concealment. In the absence of discharge of onus, the CIT(A) upheld the action of the AO and confirmed the penalty imposed by the AO. 6. Aggrieved, the assessee preferred appeal before the Tribunal. 7. The learned AR submitted at the outset that the income by way of short term capital was offered upfront by the assessee before the omission to include the capital gains was detected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge of the subject and has dutifully paid taxes before detection of the purported concealed income and having regard to the inconsistency in the satisfaction for imposition of penalty, the assessee deserves relief from the onerous provisions of Section 271(1)(c) of the Act. 8. Learned DR, on the other hand, strongly relied upon the orders of the AO and the CIT(A) and contended that when the assessee was cornered due to scrutiny notice, the assessee was left with no option indeed but to come forward to declare the short term capital gains in question. The learned DR submitted that, had the case not been selected under scrutiny, the income would have escaped taxation altogether conveniently. Therefore, the burden is very heavy on the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax laws. A perusal of land sale agreement suggests that the land was in the nature of agricultural land the gain on sale of which, under the popular belief, is not taxable. However, on objective consideration, it was found that such agricultural land was also required to undergo agricultural operations, which was missing in the present case. In these circumstances, the assessee acting on legal advice, readily came forward and offered the capital gains without resorting to litigation. On weighing the circumstances, we are of the view that the onus of bonafide therefore, in our view, is broadly discharged. The strict provisions of Section 271(1)(c) of the Act should not apply in these facts. Couple with this, we simultaneously notice that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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