Ms. POOJA SAHU, Bhopal V. THE ACIT 1(2), Bhopal

ITA 344/IND/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4452 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-12-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 21-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDE
• Keywords: Sale consideration of property below Jantri Value; Search and seizure; Opportunity of being heard; Period of limitation; Question of law; Wrong claim
• Section: 50C; 54F; 80HHC; 153A; 27; 139

Judgement Text

MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 1 OF 12 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER MS. POOJA SAHU , G-3 , ANCHAL APARTMENT , PROFESSOR COLONY BHOPAL VS. ACIT 1(2), BHOPAL APPELLANT RESPONDENT PAN: ELXPS 4840G APPELLANT BY SHRI S.S. DESHPANDE, CA RESPONDENT BY SHRI MOHD. JAVED, SR. DR DATE OF HEARING 05.12.2016 DATE OF PRONOUNCEMENT 08.12.2016 O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, BHOPAL, [HEREINAFTER REFERRED TO A S THE CIT (A)] DATED 12.03.2015. THIS APPEAL PERTAINS TO ASSESSMENT YEAR 2010-11. WHICH AROSE OU T OF THE PENALTY ORDER PASSED UNDER SECTION 271(1) (C) OF INCOME TAX ACT, 1961(HEREIN A FTER REFERRED TO AS THE ACT) BY THE ACIT 1(2) BHOPAL DTD. 27.09.2013 (HEREINAFTER REFERRED A S THE AO).THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1.THAT THE LEARNED CIT(A) ERRED IN CONFIRMING PENALT Y ORDER OF RS. 10,50,000/- WHEREAS THE SAID ORDER IS CONTRARY TO LAW AND BASED ON REJECTION OF BONAFIDE CLAIM OF RS. 18,42,195/- ON THE BASIS THAT NEW FLAT WAS PURC HASED AFTER EXPIRY OF ONE YEAR I.E. 26/03/11. WHEREAS THE RESIDENTIAL FLAT WAS PURCHASE D WITHIN A PERIOD OF TWO YEARS AS I.T.A. NO.344 /IND/2015 ASSESSMENT YEAR:2010-11 MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 2 OF 12 PERMITTED BY SECTION 54F AND WITHIN EXTENDED PERIOD OF LIMITATION SPECIFIED U/S. 139. THUS, THE PENALTY ORDER IS UNSUSTAINABLE IN LAW. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING PENALTY ORD ER CONTRARY TO LAW, BASED ON REJECTION OF CLAIM OF INVESTMENT IN PLOT OF RS. 17, 43,455/- PURCHASED PRIOR TO PERIOD ONE YEAR OF SALE OF ORIGINAL ASSETS., FOR CONSTRUCTIO N OF RESIDENTIAL HOUSE WHICH INADVERTENTLY CONTRARY TO FACTS CLAIMED BY THE COUNSEL U/S. 54D IN PLACE OF SECTION 54F. THE CONSTRUCTION COULD NOT BE COMMENCED DUE TO RESTRICTION OF GOVERNMENT AGENCY; BEYOND THE CONTROL OF THE APPELLANT, THUS PENA LTY ORDER IS NOT SUSTAINABLE IN LAW. 3.THAT THE LEARNED CIT(A) ERRED IN CONFIRMING PENALT Y WHEREAS THE ADDITION IS BASED ON DEEMED PROVISION AND DENIAL OF BONAFIDE CLAIM P ARTICULARLY WHEN THE APPELLANT HAD FURNISHED ALL THE RELEVANT FACTS, DOCUMENT/MATE RIAL AND SALE DEEDS WHICH INDICATE MARKET VALUE ON THE TOP OF DOCUMENTS. VALID ITY WHEREOF WAS NOT DOUBTED. 4. THAT THE LEARNED CIT (A) WAS WRONG IN CONFIRMING T HE ORDER OF PENALTY BECAUSE THE APPELLANT CONCEALED NEITHER THE PARTICULARS OF INCO ME NOR FURNISHED INACCURATE PARTICULARS. 2. SINCE THE ASSESSEE HAS TAKEN AS MANY AS FOUR GROUNDS OF APPEAL, HOWEVER IN SUBSTANCE , THESE RELATES TO CONFIRMING OF PENALTY ORDER OF RS. 10,50, 000/- UNDER SECTION 271(1)(C) OF THE ACT. ERGO, THESE ARE BEING CONSIDERED AND DISPOSED-OFF TO GETHER. 3. SUCCINCTLY, FACTS AS CULLED OUT FROM THE ORDERS OF L OWER AUTHORITIES ARE THAT THE ASSESSEE IS INDIVIDUAL, HAS NOT FILED ANY RETURN OF INCOME FOR T HE A.Y. 2005-06 TO 2010-11. A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 28.10.2010 IN THE CASE OF SHRI MOHAN LILA, AT THE HIS RESIDENTIAL PREMISES SITUATED AT 64 MALVIYA NAGAR, B HOPAL, AND IN THE CASE OF SHRI ANIL LILA AT HIS RESIDENTIAL PREMISES SITUATED AT LILA DHAM B ANSILAL NAGAR, AURANGABAD. DURING THE COURSE OF SEARCH, VARIOUS DOCUMENTS RELATING TO THE ASSESSEE, WERE FOUND AND SEIZED AS PER LPS-4-1 PAGES 1 TO 99 OF THE PANCHNAMA DTD. 28.10.20 10 IN THE CASE OF SHRI MOHAN LILA. MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 3 OF 12 THEREAFTER, THE AO AFTER RECORDING SATISFACTION U/S. 153C OF THE ACT ISSUED A NOTICE UNDER SECTION 153A OF THE ACT TO THE ASSESSEE. THE COPY O F SATISFACTION NOTE ALSO SUPPLIED TO THE ASSESSEE. IN RESPONSE TO WHICH, THE ASSESSEE FILED HER RETURN OF INCOME ON 24.12.2012 U/S. 153A DECLARING TOTAL INCOME OF RS. 11,900/-. THE IN COME WAS SHOWN FROM INTEREST. THE ASSESSEE HAS SHOWN INCOME FROM LONG-TERM CAPITAL GAI NS AS NIL AFTER CLAIMING DEDUCTION U/S. 54D AND 54F OF THE ACT. THE ASSESSEE HAS SOLD THREE COMMERCIAL PLOTS ON RESPECTIVE DATES I.E. 08.03.2101, 08.03.2010 AND 17.03.2010 T O SHRI MOHAN KUMAR LILA FOR TOTAL CONSIDERATION OF RS. 37,50,000/- OF WHICH STAMP DUT Y VALUATION U/S.50C WAS CONSIDERED BY THE ASSESSEE AT RS. 38,30,600/- AND AFTER CONSIDERI NG TRANSFER EXPENSES OF RS. 4,13,995/- AND STAMP DUTY OF RS. 1,25,581/- AND INDEXATION COST AT RS. 1,46,755/- COMPUTED NET LONG TERM CAPITAL GAINS AT RS. 31,44,269/- WHICH WAS SET OFF A GAINST THE CLAIM OF EXEMPTION U/S. 54F AT RS. 14,00,649/- AND RS. 17.43,620/- U/S. 54D. HOWE VER, THE AO FOUND THAT STAMP DUTY VALUATION CONSIDERED U/S.50C AT RS. 38,30,600/- BY THE ASSESSEE IS INCORRECT AS CORRECT STAMP DUTY VALUATION COMES AT RS. 43,90,000/- AS PER PROVI SION OF SECTION 50C OF THE ACT. THE AO NOTED THAT THE ASSESSEE HAS CLAIMED DEDUCTION OF RS . 14,00,649/- U/S. 54F AGAINST THE INVESTMENT OF RS. 18,42,195/- MADE ON 26.03.2011 IN PURCHASE OF FLAT SITUATED AT G2 PLOT NO. 09A ANCHAL APARTMENT, PROFESSOR COLONY, CIVIL LINES , BHOPAL. HOWEVER, THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS NEITHER DEPOSITED TH E SALE CONSIDERATION AMOUNT IN ANY CAPITAL GAINS SCHEME AS SPECIFIED ON OR BEFORE 31.07.2010, I .E. DUE DATE FOR FILING OF RETURN OF INCOME U/S. 139(1), NOR MADE INVESTMENT IN FLAT BEFORE ONE YEAR FROM DATE OF SALE OF ORIGINAL ASSETS, NEITHER MADE INVESTMENT BEFORE DUE DATE OF FILING OF RETURN U/S. 139(1) IN THE PROPERTY. THEREFORE, THE CLAIM U/S. 54F WAS NOT AVAILABLE AS P ER LAW, HENCE, IT WAS DENIED. THE ASSESSEE HAS ALSO CLAIMED DEDUCTION U/S. 54D OF RS. 17, 43,620/- FOR INVESTMENT MADE ON 27.07.2009 IN PURCHASE OF RESIDENTIAL PLOT AT KHASR A NO. 1426, KILOL PARK KI GALIYO ME, QUTUBI COLONY, AND BHOPAL. HOWEVER, THE AO FOUND THA T IT WAS NOT A COMPULSORY ACQUISITION OF LANDS AND BUILDING AND THE ASSESSEE H ERSELF SOLD THE LAND AND THERE WAS NO MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 4 OF 12 COMPULSORY ACQUISITION. HENCE, THE ASSESSEE WAS NOT FOUND ELIGIBLE FOR DEDUCTION U/S. 54D OF THE ACT. ACCORDINGLY AFTER ALLOWING TRANSFER COST INDEX COST AS CLAIMED BY THE ASSESSEE , THE AO COMPUTED LONG TERM CAPITAL GAINS AT RS. 37,03, 669/- AND TAXED ACCORDINGLY. THE AO ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271 (1) (C) OF THE ACT. AFTER ALLOWING OPPORTUNITY OF BEING HEARD FOR LEVY OF PENALTY , THE AO IMPOSED PENALTY OF RS. 10,50,000/- UNDER SECTION 271(1)(C) OF THE ACT. 4. BEING, AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFORE T HE LD. CIT (A). THE CIT (A) OBSERVED THAT THE ASSESSEE HAD NOT FURNISHED RETURN FOR A.Y. 2010-11 WITHIN TIME SPECIFIED UNDER SECTION 139(1), DESPITE THE FACT THAT THE ASSESSEE HAD SOLD THREE COMMERCIAL PLOTS DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSI DERATION AND EARNED LONG TERM CAPITAL GAINS THEREON. THIS SHOWS THAT THE APPELLANT HAS CON CEALED THE PARTICULARS. HAD THE SEARCH NOT BEEN CONDUCTED IN THE CASE OF SHRI MOHAN LILA, AND, THE DOCUMENTS CONCERNING TO THE APPELLANT NOT FOUND AND SEIZED FROM HIS RESIDENCE , THE LONG TERM CAPITAL GAINS EARNED BY THE APPELLANT WOULD HAVE ESCAPED ASSESSMENT. THE LD. C IT (A) FURTHER OBSERVED THAT THE APPELLANT FURNISHED INACCURATE PARTICULARS OF INCOM E IN RESPONSE TO NOTICE UNDER SECTION 153A BY DECLARING LOWER AMOUNT OF SALE CONSIDERATION AS PER SECTION 50C OF THE ACT, AS WELL AS MAKING CLAIM OF EXEMPTION U/S. 54D & 54F, WHICH W ERE NOT APPLICABLE IN HER CASE. THE CIT (A) FOUND THAT THE APPELLANT HAD DECLARED VALUE AT RS. 38,30,600/- AS PER SECTION 50C WHEREAS VALUE ADOPTED BY THE STAMP VALUE AUTHORITY WA S AT RS. 43,90,000/- THUS THE APPELLANT HAS FURNISHED INACCURATE PARTICULARS IN R ESPECT OF FULL VALUE OF CONSIDERATION AS PER SECTION 50C OF THE ACT. THE APPELLANT HAS ALSO MADE PATENTLY WRONG CLAIM OF EXEMPTION U/S. 54D & 54F OF THE ACT. THE EXEMPTION U/S. 54D IS APP LICABLE ONLY IN A CASE WHERE THE LAND AND BUILDING OF AN ASSESSEE ARE COMPULSORY ACQUIRED UNDER ANY LAW, WHEREAS IN THE CASE OF THE APPELLANT, SHE VOLUNTARILY SOLD THE COMMERCIAL P LOTS. THUS, IT CANNOT BE SAID THAT THE APPELLANT HAS HAD MADE BONAFIDE CLAIM OF EXEMPTION U/S. 54D OF THE ACT. SIMILARLY, IN THE CASE OF CLAIM U/S. 54F, IT IS ABUNDANTLY CLEAR THAT T HE APPELLANT HAS MADE INVESTMENT IN MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 5 OF 12 PURCHASE OF NEW RESIDENTIAL HOUSE FLAT AFTER EXPIRY OF ONE YEAR FROM THE DATE OF TRANSFER OF ORIGINAL ASSETS AND THUS THE APPELLANT WAS NOT ELIGIB LE FOR EXEMPTION UNDER SECTION 54F OF THE ACT. IN SUCH CIRCUMSTANCES, THE LD. CIT (A) HAS CON CLUDED THAT THE APPELLANT HAD CONCEALED INCOME CHARGEABLE TO TAX BY NOT FURNISHING HER RETURN OF INCOME FOR A.Y. 10-11 WITHIN TIME ALLOWED UNDER SECTION 139 OF THE ACT. EVEN IN THE R ETURN OF INCOME FURNISHED U/S. 153A READ WITH SECTION 153C OF THE ACT, THE APPELLANT HAD FUR NISHED INACCURATE PARTICULARS OF INCOME BY SHOWING WRONG FIGURE OF FULL VALUE OF CONSIDERATION A S PER SECTION 50C AND BY MAKING WRONG CLAIM U/S. 54D AND 54F OF THE ACT. ACCORDINGLY, THE PENALTY SO LEVIED CAME TO BE CONFIRMED. 5. BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE HAS PURCH ASED A PLOT FOR CONSTRUCTION OF RESIDENTIAL HOUSE ON 27.07.2009, WHICH IS WITHIN PERIOD OF ONE YEAR PRIOR TO DATE OF SALE OF PLOTS, BUT DUE TO RESTRICTION OF GOVERNMENT AS PLOT IS BEING WITHIN 50 METERS RADIUS OF UPPER LAKE, THE ASSESSEE COULD NOT CARRIED OUT CONSTRUCTION EVEN TH OUGH COLONY WAS FULLY DEVELOPED. THE ASSESSEE HAS PURCHASED A FLAT AT G2 ANCHAL APARTMEN T , BHOPAL, ON 26.03.2011 AND CLAIMED DEDUCTION OF RS. 18,42,195/- UNDER SECTION 54F OF TH E ACT, WHICH IS PURCHASED WITHIN THE TIME LIMIT PROVIDED FOR FILING BELATED RETURN U/S. 1 39(4) AND WITHIN ONE YEAR FROM DATE OF SALE. HENCE, CLAIM WAS ALLOWABLE IN THE LIGHT OF D ECISION IN THE CASE OF CIT VS. RAJESH KUMAR JAIN (2006)286 ITR 276 (GAUHATI) WHEREIN IT WAS HEL D THAT TIME LIMIT TO BE READ AS INCLUDING TIME LIMIT FOR FILING BELATED RETURN. SIMILAR FINDIN G WERE GIVEN IN THE CASE OF CIT VS. JAGTAR SINGH CHAWLA I.T.A. NO. 71 OF 2012 DTD. 20.03.2013 B Y HON`BLE PUNJAB & HARYANA HIGH COURT THAT THE EXEMPTION UNDER SECTION 54F IS ALLOW ABLE, IF INVESTMENT IS MADE BEFORE THE DUE DATE OF FILING OF BELATED RETURN. SIMILARLY THE HON`BLE KARNATAKA HIGH COURT IN THE CASE OF FATHIMA BAI VS. ITO [I.T.A. NO. 435 OF 2004 DTD. 17.10.2008] HAS REJECTED TAX DEPARTMENT CLAIM THAT DEPOSIT IN CAPITAL GAINS SCHEME SHOULD HA VE BEEN MADE BEFORE THE ORIGINAL DUE DATE OF FILING THE RETURN. HOWEVER, THE CLAIM WAS DE NIED BY THE AO. THE LEARNED COUNSEL FOR MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 6 OF 12 THE ASSESSEE, CONTENDED THAT WHEN THE CLAIM IS DENI ED ON TECHNICAL GROUND AND SAME IS ALLOWABLE ON THE BASIS OF JUDICIAL DECISIONS , THER E IS NO CONCEALMENT OF INCOME , HENCE, PENALTY UNDER SECTION 271(1)(C) IS NOT LEVIABLE. THE ASSESSEE HAS DULY DISCLOSED THE MATERIAL FACTS FOR COMPUTATION OF TOTAL INCOME AND MERELY TH E FACTS THAT PLEA OF THE ASSESSEE IS REJECTED PENALTY UNDER SECTION 271(1)(C) IS NOT ATTRACTED. TH E LEARNED COUNSEL ALSO DREW OUR ATTENTION THAT THE QUANTUM APPEAL OF THE ASSESSEE WAS REJECTE D MERELY BASED ON DELAY IN FILING OF RETURN OF INCOME, HENCE, NO FINDING ON MERIT WAS CON SIDERED. THE LEARNED COUNSEL CITED DECISION OF CIT VS. VED PARKASH LIKHI AND SONS (HUF) [I.T.A. NO. 458 OF 2010 DTD. 22.11.2010] OF HON`BLE PUNJAB & HARYANA HIGH COURT I N SUPPORT OF HIS PROPOSITION, THAT WHERE LEGAL AND BONAFIDE CLAIMED IS REJECTED AND FAC T MATERIAL ARE DISCLOSED FOR THE COMPUTATION OF TOTAL INCOME, THAT DOES NOT MEAN THA T THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF INCOME. IT WAS, ALSO CONTENDED, THAT THERE WAS NO FINDING OF THE AO THAT THE ASSESSE E`S RETURN WAS FOUND TO BE INCORRECT. THEREFORE, THERE IS NO QUESTION OF LEVY OF PENALTY. 6. ON THE OTHER HAND, THE LD. D.R. VEHEMENTLY ARGUED THA T THE RETURN WAS NOT FILED ON DUE TIME HENCE, RETURN FILED IN RESPONSE TO NOTICE UNDER SEC TION 153A WAS NOT VOLUNTARILY. EVEN THE CLAIM OF DEDUCTION US 54D WAS PATENTLY WRONG AS THE L AND AND BUILDING SOLD WAS VOLUNTARY AND NOT BY COMPULSORY ACQUISITION, THEREFORE, THE ASS ESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME AND CONCEALED THE INCOME. FUR THER, INITIAL CLAIM UNDER SECTION 54F WAS AT RS. 14,00,649/- ONLY AS AGAINST INVESTMENT IN FLAT AT RS. 18,42,195/- AT CIVIL LINES BHOPAL, ON 26.03.2011. SINCE, THE INVESTMENT IN FLAT WAS NO T MADE BEFORE DUE DATE OF FILING OF RETURN, THE ASSESSEE WAS THEREFORE, REQUIRED TO KEEP THE FUN D DEPOSITED IN CAPITAL GAINS SCHEME ON OR BEFORE THE DUE DATE OF FILING OF RETURN AS PRESCRIBE D U/S. 139(1) OF THE ACT. HOWEVER, THE ASSESSEE FAILED TO ADHERE THE TIME SCHEDULE BY DUE D ATE I.E. 31.07.2010. HENCE, THE ASSESSEE WAS NOT ENTITLED TO DEDUCTION UNDER SECTION 54F OF T HE ACT. THE LD. D.R. SUBMITTED THAT THE ASSESSEE HAS MADE INCORRECT CLAIM BY FURNISHING INAC CURATE PARTICULARS OF INCOME, SHE WAS MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 7 OF 12 LIABLE TO PENALTY UNDER SECTION 271(1) (C) OF THE AC T. IN SUPPORT OF THIS PROPOSITION, THE LD. D.R. ALSO CITED DECISION OF THIS TRIBUNAL IN THE CA SE OF KISHAN CHAND DASWANI VS. ITO 2(2) (I.T.A. NO. 725/IND/2015/A.Y. 09-10 DTD. 16.08.2016 ) WHEREIN PENALTY LEVIED ON DENYING THE CLAIM UNDER SECTION 54F WAS UPHELD. THE LD. D.R. FUR THER CITED DECISION IN THE CASE OF AJIT B ZOTA VS. ACIT (2010) 40 SOT 543(MUM) TO CONTEND THA T EXPLANATION 1 TO SECTION 271(1( (C) COULD BE INVOKED WHERE NO BONAFIDE EXPLANATION IS GI VEN BY THE ASSESSEE FOR NOT DISCLOSING THE CLAIM IN ORIGINAL RETURN OF INCOME. 7. WE HAVE CONSIDERED THE FACTS AND PERUSED THE MATERI AL ON RECORD AND ALSO GONE THROUGH THE ASSESSMENT ORDER WHICH SHOWED THAT THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME FOR A.Y. 2010-11 EVEN THOUGH THE ASSESSEE HAS SOLD COMME RCIAL LAND FOR SALE CONSIDERATION OF RS. 37,50,000/- WHICH IS VALUED AT RS. 43,90,000/- AS P ER SECTION 50C OF THE ACT. THE DEPARTMENT HAS COME TO KNOW THIS TRANSACTION ONLY WHEN PAPERS RE LATED THESE TRANSACTIONS WERE FOUND DURING SEARCH IN THE CASE OF SHRI MOHAN LILA. THEREF ORE, A NOTICE UNDER SECTION 153A READ WITH SECTION 153C WAS ISSUED TO THE ASSESSEE. IN RE SPONSE TO WHICH, THE ASSESSEE FILED RETURN OF INCOME ON 24.12.2012 DECLARING TOTAL INCOME OF R S. 11,900/- ONLY AND CLAIMING EXEMPTION U/S. 54D AND 54F OF THE ACT ON ACCOUNT OF LONG TERM C APITAL GAINS EARNED ON SALE OF COMMERCIAL PLOTS. IT IS SEEN THAT, THE ASSESSEE HAS DISCLOSED THE STAMP DUTY VALUATION AT RS. 38,30,600/- UNDER SECTION 50C OF THE ACT , WHICH WA S ALSO NOT FOUND TO BE CORRECT AS ACTUAL VALUATION WAS AT RS. 43,90,000/-. THUS, THUS, WE FI ND THAT THE ASSESSEE HAS UNDER STATED THE VALUATION AS PER PROVISION OF SECTION 50C BY AN AMO UNT OF RS. RS. 5,59,400/- . THIS ACTION OF THE ASSESSEE IS VERY MUCH AMOUNTS TO FURNISHING INACC URATE PARTICULARS OF INCOME. WE FURTHER FIND THAT THE CLAIM U/S. 54D OF RS. 17,43,6 20/- WAS PATENTLY WRONG AND HAS NO LEGAL LEGS TO STAND AS THE SAME IS APPLICABLE ONLY IN A CAS E WHERE THE LAND AND BUILDING OF THE ASSESSEE WERE COMPULSORILY ACQUIRED UNDER ANY LAW, W HEREAS, IN THE CASE OF THE ASSESSEE, THE COMMERCIAL PLOTS WERE VOLUNTARILY SOLD BY HER. THEREF ORE, IT CANNOT BE SAID THAT THIS CLAIM OF THE ASSESSEE WAS BONAFIDE ONE. SIMILARLY, THE ORIGINA L CLAIM OF RS. 14,00,649/- WAS MADE U/S. MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 8 OF 12 54F AS AGAINST THE INVESTMENT OF RS. 18,42,195/- ON 26.03.2011 IN PURCHASE OF FLAT IS ALSO NOT FOUND LEGALLY PERMISSIBLE AS THE ASSESSEE, HAS MADE I NVESTMENT IN NEW RESIDENTIAL FLAT AFTER THE EXPIRY OF ONE YEAR FROM THE DATE OF TRANSFER OF O RIGINAL ASSETS. FURTHER THE ASSESSEE HAS ALSO FAILED TO DEPOSIT UNUTILIZED SALE CONSIDERATIO N, IN THE SPECIFIED CAPITAL GAINS SCHEME AS PRESCRIBED BY CENTRAL GOVERNMENT WITHIN SIX MONTH FRO M THE DATE OF SALE OF ORIGINAL ASSETS OR WITHIN DUE DATE OF FILING OF RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT WHICH FELL ON 31.07.2010 IN THE CASE OF THE ASSESSEE. THEREFORE, IN VIEW OF THESE CIRCUMSTANCES, THE CLAIM OF THE ASSESSEE CANNOT BE SAID TO BE BONAFIDE MORE PAR TICULARLY WHEN NO VOLUNTARY RETURN OF INCOME WAS FILED. THEREFORE, WE ARE OF THE CONSIDER ED VIEW THAT THE ASSESSEE HAS CONCEALED THE INCOME CHARGEABLE TO TAX FOR A.Y. 2010-11 ATTRAC TING THE PENALTY U/S 271(1) (C) OF THE ACT. THEREFORE, ACCORDING TO US, THERE WAS CONSCIOUS AND DELIBERATE ATTEMPT ON THE PART OF THE ASSESSEE TO EVADE TAX BY CLAIMING FALSE EXEMPTION. A PERUSAL OF THE PENALTY ORDER REVEALS THAT THE AO HAS REJECTED THE CONTENTIONS ON THE BAS IS THAT THE APPELLANT HAS CONSCIOUSLY EVADED TAX FIRSTLY BY NOT FILING VOLUNTARY RETURN ON D UE DATE U/S. 139(1); SECONDLY NOT DISCLOSING ACTUAL OR CORRECT AMOUNT OF VALUATION I N ACCORDANCE WITH PROVISIONS OF SECTION 50C; AND THIRDLY BY CLAIMING PATENTLY UNTENABLE CLAIM U /S. 54D AND 54F OF THE ACT. HAD THERE BEEN NO SEARCH AND SEIZURE OPERATION IN THE C ASE OF SHRI MOHAN LILA, THE DEPARTMENT COULD HAVE LOSE THE REVENUE. FURTHER, THE QUANTUM AP PEAL OF THE ASSESSEE HAS BEEN DISMISSED BY CIT (A) DUE TO DELAY IN FILING OF APPEAL WHICH IS A LSO AN INDICATOR THAT THE ASSESSEE HAS ACCEPTED THE FINDING RECORDED BY THE AO IN QUANTUM OF APPEAL; IT IS ONLY WHEN PENALTY PROCEEDINGS WERE INITIATED THE ASSESSEE HAS WAKE UP TO FILE BELATED APPEAL. WE FIND THAT EXPLANATION I TO SECTION 271(L) (C) OF THE ACT PROV IDES THAT THE PENALTY WOULD BE DEEMED TO ATTRACT WHERE IN RESPECT OF A FACT MATERIAL TO THE COMPUTATION OF INCOME EITHER NO EXPLANATION IS OFFERED, OR EXPLANATION OFFERED IS FOUND TO BE F ALSE. THE ASSESSEE, THOUGH HAS AN EXPLANATION CLAIMING THAT THE CLAIM OF EXEMPTION U/S . 54D AND 54F OF THE ACT WAS BONAFIDE, BUT IT WAS FOUND TO BE FALSE AS IT WAS NOT IN ACCOR DANCE WITH LAW AND ACCORDINGLY ITS CASE IS MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 9 OF 12 COVERED BY CLAUSE (A) OF EXPLANATION 1 TO SECTION 27 1(1)(C) OF THE ACT. FURTHER, CLAUSE (B) OF EXPLANATION 1 TO SECTION 271(1)(C)OF THE ACT, PROV IDES THAT WHERE THE ASSESSEE IS NOT ABLE TO SUBSTANTIATE ITS EXPLANATION AND FAILS TO PROVE THA T SUCH EXPLANATION IS BONAFIDE AND ALL THE FACTS RELATING TO THE SAME HAVE BEEN DISCLOSED, PENA LTY IS LEVIABLE. WE FIND THAT THE ASSESSEE DID NOT MAKE CORRECT DISCLOSURE OF FACTS REGARDING VAL UATION AMOUNT AS PER PROVISION OF SECTION 50C AND ALSO MADE CLAIM OF EXEMPTION U/S. 5 4D AND U/S. 54F ON WRONG FOOTING WITHOUT FULFILLING THE CRITERIA LAID DOWN AS PER PRO VISION OF THE ACT. THEREFORE, THE ASSESSEE`S EXPLANATION WAS NOT FOUND TO BE ACCEPTABLE BY THE AO , AND THUS IT FOLLOWS THAT THE ASSESSEE WAS UNABLE TO SUBSTANTIATE HIS EXPLANATION BY PROVID ING VARIOUS EVIDENCES AND JUDICIAL OPINIONS. WE ARE, THEREFORE, OF THE VIEW THAT THE A DDITION HAS BEEN CORRECTLY MADE. THE CASE OF THE ASSESSEE IS, THEREFORE, IS COVERED BY EXPLANA TION 1 TO SECTION 271(1( (C) OF THE ACT. BASED ON THE FACTS OF THE CASE, WE NOTE THAT THE ASSESSEE HAD NOT MADE FULL AND TRUE WITH NECESSARY FACTS IN THE RETURN OF INCOME AND THEREFORE FURNISH ED INACCURATE PARTICULARS OF INCOME AND CONCEALED THE MATERIAL FACTS NECESSARY FOR THE ASSES SMENT. THEREFORE, WE HOLD THAT THE AO HAS RIGHTLY LEVIED PENALTY UNDER SECTION 271(1) (C) OF THE ACT. ACCORDINGLY, THE ACTION OF THE AO AND LD. CIT (A) IS UPHELD. 8. THE CONTROVERSY THAT PENALTY ARE QUASI CRIMINAL IN NA TURE OR NOT HAS BEEN BROUGHT TO AN END BY THE JUDGMENT OF THREE MEMBER BENCH OF SUPREME COUR T IN THE CASE OF M/S. DHARMENDRA TEXTILE PROCESSORS AND OTHERS 166 TAXMAN 65(SC) WHE REIN HONBLE SUPREME COURT HAS SAID THAT LIABILITY IMPOSED UNDER SECTION 271(1) (C) IS PURELY A CIVIL LIABILITY AND THERE IS NO REQUIREMENT TO ESTABLISH MEN-S-REA BEFORE LEVYING PENALTY. THE HON`BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ KUMAR CHAURASIA V CIT (288 ITR 329(ALL) WHEREIN IT WAS HELD THAT THE FINDING RECORDED IN QUANTUM OF APPEAL ARE RELEVA NT FOR IMPOSING PENALTY. FURTHER RELIANCE IS PLACED ON CIT V CHEMIEQUIPMENT LTD (20 04) 265 ITR265(BOM) WHEREIN THE HON`BLE HIGH COURT HAS HELD THAT WHERE ASSESSEE HAVI NG FULLY ENHANCED LOSSES BY NOT OFFERING AN AMOUNT TO TAX AND BY CLAIMING WRONG DEDUCT ION UNDER SECTION 80HHC AND MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 10 OF 12 OFFERED THESE AMOUNTS TO TAX ONLY IN RESPONSE TO NO TICE UNDER SECTION, PENALTY IS LIABLE. THIS DECISION SUPPORTS THE CASE OF THE AO. FURTHER RELIA NCE IS PLACED ON THE DECISION OF HON`BLE SUPREME COURT IN THE CASE OF MAK DATA P. LTD. VS. CI T (2013) 358 ITR 593(SC) WHEREIN IT WAS HELD THAT THE ASSESSING OFFICER SHOULD NOT BE CARRIE D AWAY BY THE PLEA OF THE ASSESSEE SUCH AS VOLUNTARY DISCLOSURE BUY PEACE AVOID LITIGATI ON AMICABLE SETTLEMENT TO EXPLAIN AWAY ITS CONDUCT. THE QUESTION IS WHETHER THE ASSES SEE HAS OFFERED ANY EXPLANATION FOR CONCEALMENT OF PARTICULARS OF INCOME CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 9. WE HAVE CONSIDERED THE VARIOUS DECISIONS RELIED UPO N BY THE LEARNED COUNSEL FOR THE ASSESSEE. IN THE CASE OF CIT VS. VED PARKASH LIKHI AN D SONS (HUF) [I.T.A. NO. 458 OF 2010 DTD. 22.11.2010] IT WAS HELD THAT PENALTY UNDER SECT ION 271(1)(C) CANNOT BE LEVIED IF THE ASSESSEE HAS FULLY DISCLOSED MATERIAL FACTS, HOWEVER , IN THE PRESENT CASE THE ASSESSEE HAS NOT DISCLOSED MATERIAL FACTS OF FULL AMOUNT OF CONSIDER ATION U/S. 50C AND MADE FALSE CLAIM OF EXEMPTION U/S. 54D AS WELL AS 54F OF THE ACT. THEREF ORE, THIS DECISION IS INAPPLICABLE TO THE ASSESSEE. THE LEARNED COUNSEL RELIED IN THE CASE O F CIT VS. SHRI JAGTAR SINGH CHAWLA [I.T.A. NO. 71 OF 2012 DTD. 20.03.2013] OF HON`BLE PUNJAB & HARYANA HIGH COURT TO CONTEND THAT CLAIM UNDER SECTION 54F WAS PERMISSIBLE AS THE ASSES SEE HAS INVESTED A SUM OF RS. 18,42,195 ON 26.03.2011 WITHIN DUE DATE U/S. 139(4). HOWEVER , WE FIND THAT IN THE SAID CASE, THE ASSESSEE HAS SENT THE AMOUNT OF SALE CONSIDERATION FOR DEPOSITING THE SAME IN BANK UNDER THE CAPITAL GAINS SCHEME BUT IT WAS WRONGLY DEPOSITED UNDER THE FLEXI GENERAL ACCOUNT. WHEREAS NO SUCH ATTEMPT HAS BEEN MADE IN THE CASE I N HAND. FURTHER, WE FIND THAT RECENTLY THE HON`BLE BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SULEMAN MERCHANT VS. CCIT [2016] 387 ITR 421)(BOM) 2016-TIOL-1949-HC-MUM- HELD THAT FAILURE TO DEPOSIT THE AMOUNT OF CONSIDERATION NOT UTILIZED TOWARDS THE PURCHASE OF NEW FLAT IN THE SPECIFIED BANK ACCOUNT BEFORE THE DUE DATE OF FILING RETURN OF INCOME U/S 139(1) IS FATAL TO THE CLAIM FOR EXEMPTION. THE FACT THAT THE ENTIRE AMOUNT HAS BEEN PAID TO THE DEVELOPER/BUILDER B EFORE THE LAST DATE TO FILE THE ROI IS IRRELEVANT. MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 11 OF 12 THEREFORE, THE CLAIM OF EXEMPTION U/S. 54F WAS PRIMA- FACIE NOT IN ACCORDANCE WITH LAW. IN THIS DECISION THE DECISION OF GAUHATI HIGH COURT IN THE C ASE OF CIT VS. RAJESH KUMAR JAIN (2006) 286 ITR 276(GAUHATI) AS RELIED BY THE LEARNED COUNSE L WAS CONSIDERED AND NOT FOUND APPLICABLE. NOR THE ASSESSEE HAS GET ANY RELIEF ON T HAT ACCOUNT IN HIGHER FORUM. THE QUESTION WHETHER IN A PARTICULAR CASE PENALTY UNDER SECTION 2 71(1) (C) OF THE ACT IS IMPOSABLE OR NOT IS TO BE DECIDED AFTER TAKING INTO CONSIDERATION ALL THE FACTS AND CIRCUMSTANCES OF EACH CASE. THERE CANNOT BE ANY PRECEDENT ON FACTS. PRECEDENT CA N BE ONLY ON THE POINT OF LAW. EVERY DECISION HAS TO BE UNDERSTOOD IN THE LIGHT OF THE FA CTS OF THAT PARTICULAR CASE. AS RIGHTLY SAID BY THE HONBLE SUPREME COURT IN WILLIE (WILLIAM) SLA NEY V. STATE OF M. P. [AIR 1956 SC 116] [1955] [2 SCR 1140], THAT 'THERE IS NO SUCH THING AS A JUDICIAL PRECEDENT ON FACTS THAT COUNSEL AND EVEN JUDGES, ARE SOMETIMES, PRONE TO ARGUE AND TO ACT AS IF THEY WERE'. A DECISION IS AVAILABLE AS PRECEDENT ONLY IF IT DECIDES A QUESTION OF LAW. IN OTHER WORDS, THE PRINCIPLES LAID DOWN FOR ARRIVING AT A DECISION ALONE WILL BIND AS A PRECEDENT. THEREFORE, IT IS NOT NECESSARY TO REFER TO ALL JUDGMENTS RELIED UPON BY THE LEARNED COUNSEL OF THE ASSESSEE IN THE WRITTEN SUBMISSION FILED. 10. IN THE LIGHT OF ABOVE FACTS, JUDICIAL PRONOUNCEMENTS , WE ARE SATISFIED THAT THE CONDITIONS LAID DOWN IN EXPLANATION 1 TO SECTION 271(1) (C) ARE SAT ISFIED. THUS, THE ASSESSEE IS DEEMED TO HAVE CONCEALED THE PARTICULARS OF INCOME AND THEREBY HAS FURNISHED INACCURATE PARTICULARS OF HIS INCOME AND CONCEALED THE INCOME CHARGEABLE TO TAX. T HEREFORE, WE ARE OF THE CONSIDERED OPINION THAT LD. CIT (A) WAS RIGHT IN CONFIRMING THE LEVY OF CONCEALMENT PENALTY OF RS. 10,50,000/- UNDER SECTION 271(1)(C) OF THE ACT IN R ESPECT OF LONG TERM CAPITAL GAINS AMOUNTING TO RS.37,03,669/- ACCORDINGLY, ALL THE ABOVE GROUNDS O F APPEAL ARE DISMISSED. 11. IN THE RESULT, THE APPEAL IS DISMISSED. 12. THE ORDER PRONOUNCED IN OPEN COURT ON 8 TH DECEMBER, 2106. MS. POOJA SAHU, BHOPAL /I.T.A. NO. 344/IND/2015/A.Y . 10-11: PAG E 12 OF 12 SD/- (D.T.GARASIA) JUDICIAL MEMBER SD/- (O.P.MEENA) ACCOUNTANT MEMBER DATED :8 TH DECEMBER, 2016.OPM