2009 (11) TMI 461

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....ming the order passed by the Commissioner of Income-tax (Appeals) dated December 16, 2004, wherein the order imposing penalty under section 271(1)(c) of the Act has been cancelled by the appellate authority by allowing the appeal. 2. The assessee had constructed a commercial building and showed the cost of construction of the ground floor at Rs. 8,32,000 and the cost of the first floor at Rs. 30,11,400 and the first floor was sold to a bank for Rs. 30,11,400. During survey which was conducted on November 27, 2001, under section 133A the assessee was asked to explain the cost of construction of the first floor with cogent evidence and the assessee though initially agreed to get the first floor valued by the approved valuer, failed to do s....

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.... of law : "1. Whether the Tribunal was right in holding that the expression 'concealed particulars of income' or 'inaccurate particulars of such income' as defined under section 271(1) (c) is not attracted to the facts of the case ? 2. Whether the Tribunal was right in holding that penalty levied under section 271(1) (c) is outside the purview of the Assessing Officer even though concealment of income has come to the notice subsequent to a survey conducted ? 3. Whether the Tribunal is right in law in holding that no penalty under section 271(1) (c) is not leviable without considering the fact that the assessee could not support his case by any documentary evidences whereas the Assessing Officer levied the penalty based on the repor....

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....ribunal. We have given careful consideration to the contention of the learned counsel appearing for the parties and scrutinised the material on record. The material on record would clearly show that the assessee has accepted the valuation made by the Departmental Valuation Officer and though the cost of construction of the first floor has been shown at Rs. 30,11,400, the assessee has accepted the valuation made by the Departmental Valuation Officer at Rs. 19,68,461 and has agreed for addition of the difference between the income and the expenditure shown by him at Rs. 30,11,400 and Rs. 19,68,461 and has paid tax on the said amount. However, it was contended by the assessee that the valuation report was accepted and tax has been paid on the ....