TMI Blog2021 (12) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... section/fiction. The land in dispute was acquired dated 25 April 1977 at ₹ 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. 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 acquisition. Thus, no prudent assessee will take the cost of requisition as applicable for the year 1977 when the property was acquired until and unless the facts and circumstances suggest otherwise. But nothing is available on record, neither the revenue has carried out any exercise to find out the actual value of the property as on 1st April 1981. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead capital gain in her return of income. Thus the AO, during the assessment proceedings made an addition of ₹ 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 at ₹ 9,52,775/-. 4.1. The AO in the assessment initiated the penalty proceedings under section 271(1)(c) of the Act by issuing notice under section 274 of the Act on the ground that the assessee has concealed income qua the sale of impugned land. The assessee during the penalty proceedings submitted that upon receiving the notice from the AO during the assessment proceedings, has disclosed all the facts about the sale of impugned land. As such the assessee never tried to hide any fact about the sale of land during the assessment proceedings. Therefore, no penalty can be levied for concealment of income under the provisions of section 271(1)(c) of the Act. 4.2. However the AO, was not satisfied with the contention of the assessee and held that the assessee had to disclose the material facts about the sale of land only after the case of her was selected under scrutin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see 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. The issue of Long Term Capital Gain came to light only because of scrutiny assessment. Hence, A.O. has rightly-levied penalty of ₹ 2,16,162/- u/s. 271(1)(c) of the Act for concealment of income. Thus the appellant tails on this ground. 7. Being aggrieved by the order of the learned CIT(A), the assessee is in appeal before us. 7.1. The assessee in the ground of appeal submitted that she has received consideration of ₹ 11 Lacs only against the amount alleged by the authorities below. The assessee further submitted that she has disclosed all the necessary information during the assessment proceedings qua the sale of property. As such nothing was concealed during the assessment proceedings and therefore the assessee cannot be charged with the penalty in the given facts and circumstances. 8. On the other hand the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 furnishes various particulars with respect to different kinds of income. Admittedly, the assessee has not furnished any particular of his income attributable to the impugned sale of land. Thus, it appears that the assessee has not furnished the particulars of income which implies that the assessee has concealed the particulars of income. 9.2. However, before we decide the issue whether the assessee has concealed the particulars of income. It is necessary to note that the expression 'has concealed the particulars of income' has not been defined either in section 271(1)(c) or elsewhere in the Act, hence, the common dictionary meaning may be referred to which denotes 'to hide or withdraw from observation; to cover or keep from sight; to prevent the discovery of; to withhold knowledge of' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 any merit in the aforesaid submission. It is not unknown that IT returns are filed through the experts in the IT laws and, therefore, the advise given by the learned counsel can be acted upon with bona fide belief to be correct. There is no rule of law that the aforesaid issue should have been pressed only before the AO or there was any bar on the assessee-respondent not to raise this issue before the appellate authority. The affidavit filed by the counsel of the assessee, has been readily accepted by the CIT(A) as well as by the Tribunal. It is we settled that if on the evidence adduced before the AO or the appellate forum, a possible view has been taken then under S. 260A of the Act, no substantive question of law could be framed merely because another view is possible. The appeal is, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 acquisition. Thus, no prudent assessee will take the cost of requisition as applicable for the year 1977 when the property was acquired until and unless the facts and circumstances suggest otherwise. But nothing is available on record, neither the revenue has carried out any exercise to find out the actual value of the property as on 1st April 1981. Thus, the revenue is not expected to derive any benefit out of the ignorance of the assessee. 9.8. In view of the above and after considering the facts in totality, we are of the view that there was no deliberate act on part of the assessee to conceal/furnish inaccurate particulars of income. Therefore, we are of the view that the penalty levied by the AO and sustained by the ld. CIT(A) is not maintainable. Hence we direct the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
