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TMI Blog2021 (12) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... peration from the side of the assessee, we don't find any reason to keep the matter pending before us. Accordingly, we decide to proceed to adjudicate the appeal after hearing the learner DR appearing on behalf of the Revenue. 3. The only issue raised by the assessee is that the learned CIT(A) erred in confirming the penalty levied by the AO for Rs. 2,16,162/- under the provisions of section 271(1)(c) of the Act. 4. The facts in brief are that the assessee in the present case is an individual and filed her return of income declaring an income of Rs. 1,82,320.00. There was a piece of land which was jointly held by the assessee along with 3 co-owners. Such land was sold by the assessee along with the co-owners for a sum of Rs. 56 Lacs which was valued for the purpose of Stamp duty at Rs. 58,55,000/-. The assessee on the sale of such land has not disclosed any income under the head capital gain in her return of income. Thus the AO, during the assessment proceedings made an addition of Rs. 14,10,039/- on account of long-term capital gain on the sale of property. The view taken by the AO was subsequently confirmed by the learned CIT(A) who has worked out the long-term capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition, the then CIT(A)-3 vide order no. CAIKV4S/2014-15 dated 01.03.2016 has given pan relief and ITTCG to the extent of Rs. 9,52,775/- was confirmed. Assessee preferred appeal before ITAT, Ahmedabad against the above order. The Hon'ble ITAT vide ITA No. 1892/Ahd/2016 dated 22/09/2017 dismissed the appeal of the assessee. 6.1 Accordingly. AO initialed and levied penalty of Rs. 2,16,162/- u/s. 271(1)(c) of the Act on the above addition of Rs. 9,52,775/-. The contention of the assessee has been considered and found to be not tenable. The appellant has relied upon decision of Hon'ble ITAT, Ahmedabad in ITA No. 1831/Ahd/2014 dated 20.03.2017 in the case of Kantibhai Mohanbhhai vs. ACIT. The same has been considered, however, the ratio of above decision is not applicable to the appellants case as in the above referred case the assessee has offered Long Term Capital Gain in its return of income and the addition was made over and above the disclosed LTCG u/s. 50C by the AO and on that addition penalty u/s. 271(1)(c) of the Act was levied. However, in the instant case the assessee has not at all offered Only long term capital gain on sale of the property in its return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VO did not by itself amount to furnishing inaccurate particulars of income so as to levy penalty under section 271(1)(c) of the act The revenue has also not shown as to how the assessee could be held to have actually received this amount which is in excess of the amount of mentioned in the sale deed. It has also not been shown as to whether any corresponding addition has been made in the hands of the buyer. We further notice that the addition was made totally by invoking the provision contained in section 50C of the act, therefore, penalty cannot be imposed on the income determined on the basis of deeming provision of section 50C as this solitary does not lead to concealment of income or furnishing of inaccurate particulars of income. 9.1. Now, the issue is limited to the penalty on the income to be computed not disclosed by the assessee in the income tax return under the provisions of section 271(1)(c) of the Act. In the present facts of the case, we have to test whether the assessee has concealed the particulars of income in the given facts and circumstances. The income tax return is the only way for the assessee to disclose the income. The assessee in the income tax return furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of transactions carried out by the assessee, it appears that there was no deliberate Act on the part of the assessee to conceal the income. Accordingly we draw the inference that there was no mala-fide act on the part of the assessee to furnish/conceal the income on account of sale of the property. In this regard, we find support and guidance from the judgment of Hon'ble Punjab and Haryana High Court in the case of CIT vs. Dipak Kumar reported in 232 CTR 78 wherein it was held as under: "5. Having heard learned counsel, we are of the view that the question concerning bona fide mistake or belief is more or less a question of fact, which has been decided by the CIT(A) on the basis of the affidavit filed by the counsel. There is no finding of intentional and motivated mistake which might have been resorted to by the assessee-respondent. 6. We are not impressed with the argument of Mr. Sukant Gupta, learned counsel for the appellant-Revenue, that the issue of bona fide belief based on the advise of the counsel should have been raised before the AO and there was no scope for raising such an issue before the CIT(A) because it is an afterthought. However, we do not find an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in disclosing his income and whether there was or was not conscious concealment of income, are questions of fact. The learned counsel for the department was unable to point out any question of law arising out of the order passed by the Tribunal. In our opinion, therefore, the application deserves to be rejected." 9.6. At this juncture, it is also important to note that the land in dispute was acquired dated 25 April 1977 at Rs. 36,915.00 which was taken as the cost of acquisition for the purpose of computing the capital gain capital gain whereas the assessee was given option to take the fair market value of the impugned land as on 1 April 1981 as the cost of acquisition under the provisions of section 55(2)(b) of the Act. However we find that none of the authority below has pointed out in their respective orders whether the assessee was given the opportunity to take the value as on 1 April 1981 as the cost of requisition for the purpose of the capital gain. 9.7. Generally, the rate of the land increases year after year. Thus, the value of the property in dispute, acquired in the year 1977, should have increased as on 1 April 1981 which should have been taken as the cost of acqu ..... 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