2015 (2) TMI 1266

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....ld. CIT(A) erred in confirming the penalty levied by the AO u/s.271(1)(c) for Rs. 1,48,19,500/-. 2. The ld. CIT(A) failed to appreciate that: a) the Appellant has neither concealed the particulars of its Income nor furnished any inaccurate particulars of such income; b) no unaccounted cash was received by the Appellant on sale of plots; c) no income has arised or accrued in the hands of the Appellant out of receipts from M/s. Alokik Township Corporation; and d) merely because certain additions are made rejecting the bonafide explanation per se will not be sufficient to attract penalty u/s.271(1)(c). 3. In reaching to the conclusion and confirming the penalty the ld. CIT(A) omitted to consider relevant factors, consideratio....

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.... notice u/s 274 r.w.s 271(1)(c) of the Act. Vide his order, dated 18.02.2011, he held that assessee concealed the particulars of income for the year under consideration. As a result, he levied penalty of Rs. 1.48 Crores taking into consideration the addition of Rs. 2 Crores made by the FAA. 4.During the course of hearing before us, Authorised Representative(AR)stated that the Tribunal vide its order dated 17.11.2014 (ITA No. 2320and 4692/Mum/2010-AY 2006-07 & 2007-08) had deleted the addition made by the AO/enhanced by the FAA, that the penalty imposed for the additions would not survive. He referred to page no. 6 & 9 of the above-mentioned order of the Tribunal. Departmental Representative (DR) relied upon the order of the FAA. 5.We have....

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.... from M/s ATC. Hence the 'refundable advance' of Rs. 3.00 crores received by the assessee constitutes capital receipt in the hands of the assessee, which is not liable to tax under any of the provisions of the Act. Further, a perusal of the MOU would show that it was a case of Joint development of land belonging to the assessee and there is no evidence to show that the assessee has parted with the land in favour of M/s ATC. Hence, the question of Capital gains also, in our view, would not arise. Respectfully, following the above, we are deleting the penalty levied for the said amount as. As far as the addition of Rs. 1.40 Crores is concerned, the Tribunal has held as under: 18. We find merit in the contentions of the Ld AR. Fir....

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....n view of the foregoing, we are of the view that the assessing officer has reached conclusions about the selling rate of plots only on surmises and conjectures without bringing any credible evidence on record. Hence, in our view, there is no case to presume that the assessee had received a portion of advance in cash without accounting the same in its books of account. 19. Even otherwise, we find force in the contentions of Ld A.R that mere receipt of advance would not give rise to any income element. From the explanations furnished before the AO, we notice that the assessee had proposed to execute sale agreements only in the subsequent years after the receipt of necessary approvals, meaning thereby the assessee has received only advances....