TMI Blog2022 (2) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... A) against the order of penalty under Section 271(1)(c) of the Act within 30 days from the date of service of the notice of demand relating to the penalty. The impugned order of the learned CIT(A) that the appeal was filed by the assessee only on 20.06.2016, i.e. beyond the period prescribed in sub-section 2 of Section 249 - As rightly contended by the learned Departmental Representative, the learned CIT(A), however, failed to take note of this delay and proceeded to dispose of the appeal of the assessee vide his impugned order on merit without passing any order on the issue of condonation of delay. We, therefore, find merit in Ground No.1 of the Revenue s appeal and remit the matter back to the learned CIT(A) for considering the issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Stamp Duty Valuation was challenged by her on the basis of situation location of land, surface position of land, quality of soil, frontage and interiority etc.. This explanation of the assessee was not found acceptable by the Assessing Officer; and, adopting the Stamp Duty Valuation of ₹ 3,62,53,993/- as sale consideration by invoking the provisions of Section 50C of the Act, he recomputed the Long Term Capital Gain at ₹ 2,00,20,519/- and made an addition of ₹ 1,83,05,579/- to the total income of the assessee on account of Long Term Capital Gain in the assessment completed under Section 143(3) of the Act vide order dated 11.02.2015. He also initiated penalty proceedings under Section 271(1)(c) of the Act; and, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved form its culpability and as per IT Act mens-rea is not required to be proved by the Revenue. Hence, no disclosure of true income in original return construes furnishing inaccurate particulars of income. During the course of appellate proceedings, the A.R of the appellant has filed written submission. The appellant has shown LTCG in respect of sale of various immovable properties for a sale consideration of ₹ 1,79,48,414/-, The A.O. has taken actual market rate [Jantri Value) of ₹ 3,62,53,993/-. The only concern for the A.O. was that the appellant has not made any objection to excessive valuation and has accepted the addition during the course of assessment proceedings. The A.O. cannot take advantage of ignorance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the course of assessment proceedings. The fact remains that the actual amount received was offered for taxation. The A.O. has failed to produce any iota of evidence that the assessee actually received more than the amount shown to have been received by her. After considering the surrounding circumstances and applying the test of human probabilities, one has to reasonably conclude that the plea of the assessee is genuine. The penalty proceedings are independent from the assessment proceedings and it is not continuation of assessment proceedings. In the penalty proceedings, the A.O. has to be satisfied that the assessee has concealed the particulars of her income or furnished inaccurate particulars of such income. In other words, it must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the decision of the Hon'ble Supreme Court in the case of CIT V/s Reliance Petroproducts Pvt Ltd. [2010] 322 ITR 158 (SC) and Chimanlal Manilal Patel (Supra), the penalty levied u/s 271(1)(c) is not sustainable. The same is deleted. Thus, the appellant succeeds on this count. 4. Aggrieved by the order of the learned CIT(A), the Revenue has referred this appeal before the Tribunal on the following grounds:- 1. The appeal order passed by CIT(A) is bad in law, illegal and void, as the appeal order is passed by CIT(A) without considering the delay in filing of appeal and no order for condonation of delay has been passed by CIT(A). 2. On the facts and In the circumstances of the case, the learned CIT(A) erred in deleting the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ground No.1, the learned Departmental Representative has pointed out from the copy of Form No.35 filed by the assessee before the learned CIT(A) that the relevant notice of demand for penalty imposed under Section 271(1)(c) of the Act was served on the assessee on 21.03.2016. As per the specific provision contained in sub-section (2)(b) of Section 249 of the Act, the assessee was required to file the appeal before the learned CIT(A) against the order of penalty under Section 271(1)(c) of the Act within 30 days from the date of service of the notice of demand relating to the penalty. It is, however, noted from the impugned order of the learned CIT(A) that the appeal was filed by the assessee only on 20.06.2016, i.e. beyond the period pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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