TMI Blog2024 (4) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... dled with a penalty for non-disclosure of such facts. The petitioner may never have been saddled to perform an impossible duty. A fact that was not know known to the petitioner may never have been disclosed by him. Second, as to imposition of penalty, corresponding to Stamp Duty assessed on value of sale consideration suffice to note that assessee had furnished explanation with respect to the same. According to the assessee, he was not aware of the sale deed executed by his Power of Attorney holder By observing conduct of the petitioner as contumacious and that he had clearly furnished inaccurate particulars, the Settlement Commission may never have substituted the requirement of reasoning with adjectives or by recording simple conclusion not supported by reasoning or finding as may lead to such conclusions. It was legally permissible to the Settlement Commission to consider imposition of the penalty under Section 271(1) (c) of the Act, yet in the facts of the present case, element of concealment of income was not established. Merely because addition may be made on the quantum side by invoking Section 50 C of the Act, it did not itself establish that such estimated consideration ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings. 5. In view of that disclosure made to the petitioner, it is his further case that he applied before the Settlement Commission on 30.12.2009. At that stage, the petitioner disclosed his income to Rs. 21,00,000/- arising from sale of the above property. 6. Parallel to the proceeding before the Settlement Commission, the Stamp Valuation Authority of the State Government has taken up the matter, of their own. Accordingly, first they valued the sale deed against consideration Rs. 24,50,000/- and still later they revised it to Rs. 2,22,98,000/- on 15.09.2007. Upon the appeal filed, the Board of Revenue Chief Controlling Revenue Authority has reduced the same upto Rs. 80,43,000/-. Further proceedings arising therefrom are not disclosed. 7. It is in such circumstances that the Settlement Commission has processed the application made by the petitioner. After making note of the facts, it has observed in paragraph nos. 29 and 30 as below: 29. The learned AR was specifically asked to reply why penalty for concealment should not be imposed in this case. The learned AR submitted that section 50C was a deeming provision and since it has not been established that the applicant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Settlement Commission the conduct of the applicant is contumacious. He has clearly furnished inaccurate particulars of his income (valuation of the land sold). We feel that this is a fit case for imposition of penalty u/s 271(1)(c). However, we would consider it reasonable to restrict the penalty to the minimum amount of capital gains sought to be evaded with reference to the value of Rs. 80,43,000/- as determined by the Revenue Board vide their order dated 11.4.2008. 8. In such facts, at present the writ petition has been confined to the levy of penalty under Section 271 (1)(c) of the Act. All other challenge raised to the validity of Section 50 C of the Act as also to the other parts of the order passed by the Settlement Commissioner have been not pressed by learned counsel for the petitioner. 9. On the levy of penalty, it has been submitted that no element of mens rea was alleged or established. Neither the petitioner was aware of the sale of his property nor he has received any consideration through any mode nor the Revenue has made any allegations in that regard. Moreover, there is no evidence whatsoever of any amount having been received in excess of disclosed consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer: [Provided that where the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer: Provided further that the first proviso shall apply only in a case where the amount of consideration, or a part thereof, has been received by way of an account payee cheque or account payee bank draft or by use of electronic clearing system through a bank account, or through such other electronic mode as may be prescribed on or before the date of the agreement for transfer: Provided also that where the value adopted or assessed or assessable by the stamp valuation authority does not exceed one hundred and five per cent. of the consideration received or accruing as a result of the transfer, the consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , suffice to note that assessee had furnished explanation with respect to the same. According to the assessee, he was not aware of the sale deed executed by his Power of Attorney holder Gaurav Agrawal, on 05.02.2007. He further pleaded, according to the recital contained in the sale deed itself, the property was sold for Rs. 7,10,000/- against cash payment received by said Gaurav Agrawal. Whether that explanation was true or not has not been investigated by the Settlement Commission. The Settlement Commission has not expressed any doubt to disbelieve the explanation furnished by the petitioner, as true. Since penalty under Section 271 (1) (c) of the Act may be imposed only on occurrence of concealment and not on under disclosure, the burden on the Revenue Authority - to establish such concealment, remained undischarged. 21. In the present case, though the allegation of concealment was made by the revenue authorities, the petitioner did furnish his fact explanation to the same. Therefore, revenue authorities and here the Settlement Commission were obligated in law to consider the fact explanation before imposing penalty under Section 271 (1) (c) of the Act. Without disbelieving the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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