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08-03-2019, Babita Khurana, Section 271(1)(c), 132, Tribunal Delhi

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2 months 1 week ago #8762 by amit
Section - 271(1)(c), 132, 153A, 139(1), 274, 271
Order Date - 08-03-2019
Favouring - Assessee
Court - Tribunal Delhi
Appellant - Babita Khurana
Respondent - DCIT
Citation - 319Taxpundit209
Appeal No. - ITA.Nos.4707/Del./2018
Asstt. Year - 2010-2011



This appeal by assessee has been directed against the order of Learned CIT(A)-IV, Kanpur, Dated 25th April, 2018, for the assessment year 2010-2011, challenging the levy of penalty under section 271(1)(c) of the Income Tax Act, 1961.

2. Briefly the facts of the case are that original return of income was filed by the assessee on 22nd October, 2010, declaring total income of Rs.5,44,730/-. A search and seizure operation was conducted under section 132 of the Income Tax Act on 9th October, 2013 on the business premises of the assessee comprising Shubhkamna Buildtech Group of cases. Notice under section 153A was issued and the assessee, in response thereto, declared total income of Rs.14,19,729/-. The assessing officer noted that in the return filed under section 153A, the assessee has shown income from short term capital gains to the tune of Rs.8,75,000/- which was not shown in the original return of income under Section 139(1) by her. The assessing officer, however, noted that assessee purchased a property at Gurgaon for a total cost of Rs.1,73,25,000/-. In assessment year under appeal, assessee has sold the same vide sale deed dated 7th December, 2009, in which, sale consideration has been shown at Rs.1,30,00,000/- and stamp duty expenses had been shown at Rs.9,10,000/-. The back side of the relevant page regarding computation of circle rate is not available. However, it has been found that the stamp duty expenses are 5% of the circle rate value. Thus, the circle rate of the property sold by the assessee comes to Rs.1,82,00,000/-. The provisions of Section 50C wasattracted in this case. Therefore,
assessee filed revised return of income under section 153A declaring short term capital gain of Rs.8,75,000/- and has shown total income of Rs.14,19,730/-. The assessing officer accepted the return of income. However, the assessing officer mentioned in the assessment order “penalty proceedings under section 271(1)(c) is initiated for concealment of income/filing inaccurate particulars of income ” The assessing officer completed the assessment under section 143(3)/153A vide Order Dated 30th March 2016. The assessing officer vide separate order, initiated the penalty proceedings against the assessee and issued show cause notice under section 274 read with section 271(1)(c) of the Income Tax Act on 25th February, 2015 for compliance on 14th May, 2016. But, no compliance was made by assessee, therefore, fresh notice was issued on 21st June, 2016 for levy of the penalty. The assessing officer, vide separate order, levied the penalty under section 271(1)(c) of the Income Tax Act, 1961 which is confirmed by the Learned CIT(A).

3. Learned Counsel for the Assessee submitted that prior to that the A.O. issued show cause notice before levy of the penalty under section 274 read with section 271 of the Income Tax Act, Dated 30th March, 2016, in which, the assessing officer has mentioned as under :

“why penalty u/s.271(1)(c) of IT Act may not be imposed upon you. Why penalty u/s 271B of IT Act may not be imposed upon you ”

3.1. He has submitted that prior to that assessing officer issued show cause notice on 25th February, 2015 for compliance on 14th March, 2016. However, by that time no assessment order under section 153A was passed. Therefore, the show cause notices issued are illegal and bad in law, particularly, it did not specify as to under which limb of Section 271(1)(c) of the Income Tax Act, penalty have been initiated against the assessee. In support of the said contention, he has relied upon order of ITAT, Delhi G-Bench in the case of Jagdamba Prasad Gupta, Delhi vs. ACIT, Circle-35(1), New Delhi, in ITA.No.1834/Del./2016, Order

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