2013 (9) TMI 804

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....the instant appeal on the following substantial question of law: "Whether the Income Tax Appellate Tribunal has erred in law in failing to appreciate that the assessee had not disclosed the income from sale of property at 278/91, Moti Nagar, Lucknow as income from the capital gains in his return of income and that therefore, he is liable for penalty under section 271 (1) (c) of the I.T. Act, 1961." The brief facts of the case are that the assessee - Sri Shiv Kumar Jaiswal and his wife Smt. Asha Jaiswal were the owner of a property known as "Hotel Asha Deep" situated at 278/91, Moti Nagar, Aish Bagh Road, Lucknow. The said property was gifted by a registered gift deed to a family friend Sri Raj Kumar Chaurasia. For the purpose of stamp....

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....is gift is not a return gift but a part of sale consideration. The transaction is nothing but a sale and purchase of the Hotel Property. He also submits that the surrender is not voluntarily. So, the penalty was rightly imposed by the A.O. For this purpose, he has relied on the following cases: 1. Union of India vs. Dharmendra Textiles Processors and others (2008) 306 ITR 277 SC ; 2. Banaras Chemical Factory vs. CIT 108 ITR 96 (All); and 3. Thirupathy Kumar Khemka and another vs. CIT (2007) 291 ITR 122 (Mad). Lastly, he made a request that the impugned orders passed by the lower authorities may kindly be set aside. On the other hand, Sri Pritish Kumar, learned counsel for the assessee, at the strength of the written submissio....

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....y relying on the surrender application of the assessee and wrongly levied the penalty. He also submits that the Hon'ble Supreme Court in the case of K. C. Builders vs. C.I.T.; (2004) 2 SCC 731 defines the word 'concealment' by observing that : "The word concealment inherently carries with it the element of mens rea and further held that 'unless and until there is some evidence to show or some circumstances found from which it can be gathered that the omission was attributable to an intention or desire on the part of the assessee to hide or conceal the income so as to avoid the imposition of tax thereon. In order that a penalty under section 271 (1)(c) may be imposed" Lastly, he made a request to dismiss the appeal filed by the departm....