TaxTMI 
TaxTMI 
2023 (10) TMI 833
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....peal) NFAC has grossly erred in passing of penalty appeal order which precedes to the quantum appeal and which is still pending alongwith application w/rule 46A of IT Rules for disposal with the CIT (Appeals), NFAC. 3. That Ld AO has erred in levying penalty on the sale transaction of immovable property wherein the appellant has put his signature as power of attorney holder for and on behalf of legal owner Mr. Surya Prakash Nathani, Bhilwara. Thus assessment order was erroneously passed in hands of appellant instead of passing of same in the hands of actual and legal owner of the property and which itself vitiates the entire proceedings. That appeal against the impugned assessment order is still pending for disposal before CIT (Appeal), NFAC and without coming out any outcome of appeal case the CIT(A), NFAC has further erred in confirming the penalty without any basis. 4. That Ld AO has erred in levying of penalty and further CIT(A) has further erred in confirming the penalty mechanically and without application of mind and thus entire proceedings are illegal and void- abinitio. 5. That the appellant craves leave to add, amend or alter any of the ground to this appeal with....
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....AO levying penalty the assessee carried the matter in appeal before the ld CIT/NFAC. The appeal of the dismissed vide order dated 24.02.2023. The relevant finding of the ld. CIT(A) is reiterated here in below: "6. The aforesaid non compliances reveal beyond doubt that the appellant has nothing to say in the matter of present appeal. Thus, it appears that the assessee is not interested in prosecution of the present appeal and the same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in the well-known dictum "VIGILATIBUS, NON DORMENTIBUS, JURA SUBVENIUNT. Considering the facts and relying on the decision of the Hon'ble, ITAT, Delhi Bench, in the case of CIT VS Multiplan India Ltd. reported in 38- ITD-320 and the judgement of the Hon'ble Madhya Pradesh High Court in the case of Estate of Late Tukoji Rao Holker Vs. CWT (1997) reported in 223-ITR-480 the present appeal is hereby dismissed. 7. The appellant has raised grounds of appeal No. 1 to 3 which challenge the penalty u/s 271(1)(c) of Act levied by AO of Rs. 81,490/- for concealment of income.However no written ....
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....additional ground and. order of CIT(A) as rejected on the ground of non timely e-filing of appeal may please be rejected & oblige." 6. Since, there is no additional facts or material is relied upon and therefore, in the interest of justice to the assessee the additional ground so raised by the assessee is admitted for adjudication. In support of the grounds so raised the ld. AR of the assessee also submitted the written submission the same is reiterated here in below: "With utmost respect the appellant hereby submits the written submission in the case which may please be considered while deciding the appeal. GROUND NO. 1: ERRONEOUS ACTION OF LEVY OF PENATLY U/S. 271(1)(C) BASED ON DLC VALUE U/S. 50C OF I.T. ACT 1. That Ld AO while passing the assessment order has made addition of Rs. 555600/- in hands of the appellant which is DLC value of sale transaction of agricultural land situated at Khasra no. 293/1 and 293/2 situated at village-kanota, Tehsil-Bassi, Distt: Jaipur. That the Ld AO while passing the penalty order has levied penalty u/s. 271(1)(c) on deeming fiction whereas there is no malicious intention of the appellant at any point into entire transaction. That prov....
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....shing inaccurate particulars of income for the purpose of levying the penalty u/s. 271(1)(c) of the Act. The Hon'ble SC has also observed that merely making a wrong claim does not amount o furnishing inaccurate particulars of income in the absence of finding that any detail by the assessee is incorrect or false." (ii). ACIT Vs. N. Meenakshi (319-ITR- Page 262 -Chennai ITAT) wherein penalty levied on difference of DLC and actual transaction value and wherein it was held that even the addition is accepted by assessee, it cannot be said to said to furnishing of inaccurate particulars for levy of penalty and accordingly penalty deleted. (iii). Hindustan Steel Limited Vs. State of Orissa (Supreme Court - 1972 - 83 - ITR page no. 26) wherein it has been held that levying penalty u/s. 271(1)(c) the AO has to prove that assessee has consciously made concealment or inaccurate particulars of his income. In the given circumstances only the technical opinion has changed resulting into change in quantum of tax method of tax but nowhere is could be proved that concealment taken place and thus no penalty to be levied. (iv). Reliance Petro Products Pvt. Ltd. (2010-322-ITR - page 158 - Sup....
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.....2019 and thereafter same is also uploaded on IT Portal. It is here to submit that still the fate of application u/rule 46A is pending for disposal. 3. That in the case of Sidharth Chaudhary Vs. ITO (ITA No.: 890/Del/2020 - ITAT Delhi) has held that "capital gain can not be charged from the person who sold property as attorney of owner. There is no ambiguity under the law for chargeability of capital gain in respect of transfer of any capital asset. It is the owner of capital asset who would be liable for capital gain and in case sale consideration is credited into the account of third party or the attorney of such owner, in that event also the money which has been credited in the account of the third party or the power of attorney cannot be subjected to tax under the head capital gains." (copy of order is enclosed) 4. That due to severe medical illness and due to facing of several cheque bouncing cases u/s. 138 of Negotiable Instrument Act wherein residential house of assessee was also got auctioned by bank, the appellant was mentally disturbed. Apart from same the appellant was dependent on Mr. Lalit Sharam, Accountant who could not update about having pass of assessment....
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....al of the assessee and alternatively the same may be restored to the file of the ld. CIT(A) as the same has been decided ex party. 8. In the rejoinder the ld. AR of the assessee in support of the additional grounds submitted that the ld. AO, apropos to the addition made observed as under:- "Addition on account of long Term Capital Gain: Though, in the absence of full and true particulars reliance is, placed on the certified copy of sale deed /POA obtained from Sub-Registrar-V, Amer. As seen from page-02 of the said sale deed the assessee was power of attorney holder and he had acquired the said property Khasra No. 293/1,293/2, Shiv Colony, Village- Kanota, Tehsil- Bassi, Jaipour, on 27.10.1998. Therefore, the said property was purchased/acquired by the assessee in FY 1998-1999 and sold in the year under consideration for Rs. 1,20,000/- which was valued at Rs. 5,55,600/- by the stamp valuation authority. Thus, the asset was capital in nature and the assessee was liable to pay long term capital gain. Thus, the long term capital gain is calculated as below:- Sale value Rs. 5,55,600/- Less: Purchase price without indexation (on the basis of details in sale deed) Rs.....
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.... without considering the fact that the assessee has already received a sum of Rs. 1,20,000 and ld. AO has not considered the cost of acquisition. If reduced the consideration of Rs. 1,20,000/- the balance amount is the difference between the consideration and stamp duty value as per provision of section 50 C of the act. Thus, it is not disputed by the ld. DR representing the revenue that the amount after reducing the consideration the sustained amount is on account of the stamp duty valuation and there are various decision of the co-ordinate bench of the tribunal holding the there cannot be levy of penalty on the amount sustained on account of the provision of section 50C of the Act, this view of the tribunal is also confirmed by the Honorable HIGH COURT OF BOMBAY in the case of Commissioner of Income-tax v. Fortune Hotels and Estates (P.) Ltd. The relevant finding of the high court is as under: 2. Upon perusal of the order passed by the Tribunal in its entirety and noting the peculiar facts pertaining to the Assessee we are of the view that the question as posed before us and the contentions advanced need not be gone into in any further details. The admitted factual position and....