TaxTMI 
TaxTMI 
2024 (12) TMI 493
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....inst the facts and laws of the case. 2 That the Ld. Assessing Officer erred in confirming the penalty of Rs. 4,56,362 levied by the Assessing Officer under section 271(1)(c) of the Act without recording proper satisfaction within the meaning of section 271 of the Income Tax Act, 1961. 3 That on the facts and circumstances of the case, the Assessing Officer erred in levying the penalty of Rs 4,56,362 when the assessee was prevented by reasonable and sufficient cause, within the meaning of section 275 of the Income Tax Act, 1961, to furnish return of total income under section 139(1) of the Act and when the amount of income of Rs. 22,95,849 arising in the hands of the Assessee was duly included in the return filed u/s 148 of the Act. 4 That, without prejudice to the above, the Assessing Officer failed to appreciate that no penalty could be imposed on the sum of Rs. 79,500, being rent paid by Developer on behalf of the Assessee for alternate accommodation during the development period, without appreciating the judicial pronouncements which clearly held that such rent could not be taxed in the hands of the land owner/Assessee 5 That the assessing officer erred in levying penalt....
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.... dealt on merits and same ought to have been dealt by this Tribunal, we find that apparent mistake has occurred in framing the impugned order which needs to be rectified and the grievance of the assessee can be addressed only by recalling the impugned order. We therefore find merits in the contention of the Id. counsel for the assessee and thus recall our order dated 13.03.2023. The registry is directed to restore ITA No. 359/Kol/2022 at its original number and fixed it for hearing in due course by issuing notice to the parties. In terms of the above, miscellaneous application of the assessee is hereby allowed." 4. Consequently, the appeal was taken up afresh. Rival contentions were heard and the submissions made have been examined. 5. Ground nos.1, 2, 3 and 5 are related to the imposition of penalty of Rs. 4,56,362/-, being without jurisdiction, illegal and invalid, bad in law, without recording proper satisfaction within the meaning of Section 271 of the Act and without appreciating that the amount of Rs. 22,95,849/- arising in the hands of the assessee was duly included in the return filed u/s 148 of the Act. It is further mentioned in ground no. 5 that the Ld. AO erred in lev....
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.... with multi organs failure as well as coma. Therefore, it is seen that the assessee has taken different plea at different point of time. So the version of the assessee cannot be relied upon. Further, the assessee never submitted any medical documents in support of his claim. ii) The assessee had taken the plea that the amount received by him during the venture was mainly spent for his mother's medical expenditure. The assessee received the amount of Rs. 22,75,000/- during the F.Y. 2010-11. Therefore, the assessee was supposed to submit his return of income for the A.Y. 2011-12 within the month of July, 2011. The assessee's mother was expired on 01.08.2015. Thus the assessee's plea that most of the amount was spent by him towards his mother's medical expenditure (i.e. within March, 2012) is not at all acceptable. Further, from the details of investment submitted by the assessee during assessment stage, it is noticed that the assessee made fixed deposits to the tune of Rs. 8,30,000/- during the F.Y. 2010-11 with various banks. It is also noticed from the deed of conveyance that the assessee received Rs. 1,01,00,000/- and Rs. 1,20,00,000/- on 27/12/2017 from sale of ....
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....e was not voluntary. 5.2 AO has explained in detail that assessee received money in F.Y. 2011-11. Return for this was to be filed by 31.07.2011. Mother of the assessee died on 01.08.2015. It cannot be the case of the assessee that he spent the 92% of the money received by 31.07.2011. Hence, he had no money left to pay due taxes. Further, there is no documentary evidence filed by assessee to prove this claim. In any case, there can't be any excuse to avoid the due government taxes. 5.3 As stated by the AO, the assessee had no objection to the addition of 79,500 when pointed out during assessment proceedings. This was over and above the amount shown in the return u/s 148. The facts that there was no explanation with the assessee for not disclosing the same. Infact nothing was voluntary by the assessee. The plea that payment were made to the third party is not acceptable. He was part of the arrangement/agreement and enjoyed the benefits in cash& kind of the arrangement with joint developer. He was liable to disclose the true and correct income in his return u/s 139(1) which was never filed. 5.4 The assessee has relied upon the certain case laws. But none of them are applicab....
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....e has relied on the decision of the Tribunal in the case of Smt. Delilah Raj Mansukhani Vs. ITO in ITA No. 3526/MUM/2017 vide order dated 29th January, 2021, in which the compensation amount received for alternative accommodation has been held to be a receipt not in the nature of income by observing as under: - "5. After hearing the rival submissions and perusing the material on record, we find that compensation received by the assessee towards displacement in terms of Development Agreement is not a revenue receipt and constitute capital receipt as the property has gone into re- development. In such scenario, the compensation is normally paid by the builder on account of hardship faced by owner of the flat due to displacement of the occupants of the flat. The said payment is in the nature of hardship allowance /rehabilitation allowance and is not liable to tax. The case of the assessee is squarely supported by the decision of the Co-ordinate Bench in the case of Shri Devshi Lakhamshi Dedhia Ms. Delilah Raj Mansukhani vs. ACIT in ITA No.5350/Mum/2012 wherein similar issue has been decided in favour of the assessee, the relevant operative portion is reproduced hereunder:- 15. We ....
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....ded as income from other sources, however, when examined in view of the judicial pronouncements in this regard (supra), the same is not liable to be included in the total income of the assessee as being compensatory and capital in nature. Thus, no penalty is leviable on the amount of Rs. 79,500/- and ground no. 4 is allowed in favour of the assessee. 10. As regards ground no. 2, the Ld. AO had recorded the satisfaction in the assessment order as under: - "I am satisfied that it is a fit case for initiation of penalty u/s 271(1)(c) in respect of Income from Capital Gain and Income from Other Sources with a motive to avoid payment of taxes and defraud the exchequer. Penalty proceedings u/s 271(1)(c) of the 1.T. Act is being initiated separately. Considering the facts and circumstances as discussed above, total taxable income of the assessee is assessed u/s 147/143(3) of the 1.T. Act, 1961 of Rs. 2,375,350/- Computation of Total Income is made as below: Income from Other Sources (as per return) Rs. 27,988/- Add: Income from Other Sources Rs. 79,500/- (as discussed above) Rs. 107,488/- Income from Capital Gain (as per return) Rs.2,275,000/- Gross Total Income Rs.2,3....
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.... K.R. Chinni Krishna Chetty [2000] 246 ITR 121 has held that under section 271(1)(c) of the Act the authority is given the discretion to levy a penalty if there is concealment of particulars of income and even as regards the quantum of the penalty there is a discretion. Of greater importance is the necessity for a definite finding that there is concealment, as without such a finding of concealment, there can be no question of imposing any penalty. In the assessee's case, the AO has not given any finding in assessment order that the assessee had concealed any income or furnished inaccurate particulars of such income. He had simply accepted the returned income u/s 148. Hence assessee's case is covered by the decisions referred to above and penalty u/s 271(1)(c) will not be imposable. In CIT v. Suresh Chandra Mittal [2001] 251 ITR 963 (SC) the assessee filed revised returns showing higher income after search and notice for reopening of assessment, to purchase peace and avoid litigation and Department simply rested its conclusion on the act of voluntary surrender done by the I.T.A. No. 327/Del/2014 Assessment year 2008-09 assessee in good faith, High Court was justified in hold....