MINAXI K. MEHTA, MUMBAI V. ASST CIT 21(1), MUMBAI

ITA 6766/MUM/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0205 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-11-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset; Gift; Bonafide belief

Judgement Text

P A G E | 1 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . IN THE IN COME TAX APPELLATE TRIBUNAL B BENCH, M UMBAI BEFORE SHRI R.C. SHARMA, A M AND SHRI RAVISH SOOD , J M ITA NO. 6766 /MUM/201 4 ( / ASSESSMENT YEAR: 2008 - 09 ) MRS. MINAXI K. MEHTA, B - 21, 3 RD FLOOR, PARITOSH KAPOLE SOCIETY, V.L MEHTA MARG, J.V.P.D., VILLE - PARLE(W), MUMBAI - 400049 . / VS. ACIT, CIRCLE - 21(1) , MUMBAI . ./ ./ PAN NO. AAJPM2912L ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : SHRI . ASHOK BANSAL / RESPONDENT BY : SHRI . SAURABH KUMAR RAI / DATE OF HEARING : 07 .0 9 .2018 / DATE OF PRONOUNCEMENT : 1 9 .0 9 .2018 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 32 , MUMBAI , DATED. 22.08.2014 , WHICH IN TURN ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC. 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT) DATED 25.03.2013 FOR A.Y. 2008 - 09 . THE ASSESSEE HA S ASSAILED THE ORDER OF THE CIT(A) BY RAISING THE FOLLOWING GROUNDS OF APPEAL BEFORE US : 1. THE LEARNED CIT(A) - 32 ERRED IN CONFIRMED THE ORDER ACIT 21(1) IN ASSESSING THE LONG TERM CAPITAL GAINS ARISING ON TRANSFER OF THE RESIDUARY RIGHTS IN THE LAND AT MUMBAI AT RS. 1,28,92,569/ - AND WHILE DOING SO SHE AMONGST OTHERS ERRED IN : P A G E | 2 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . A) NOT APPRECIATING THAT THE CAPITAL ASSET TRANSFERRED BY THE APPELLANT DURING THE YEAR WAS ONLY THE RESIDUARY RIGHT, TITLE AND INTEREST IN THE IMMOVABLE PROPERTY RECEIVED UNDER A GIFT BY THE APPELLANT; B) NOT APPRECIATING THAT THE ACTUAL FULL VALUE OF CONSIDERATION RECEIVED OR ARISING ON TRANSFER OF IMMOVABLE PROPERTY IN THE HANDS OF THE APPELLANT WAS ONLY RS. 6,25,00,000/ - C) NOT APPRECIATING THAT IMMOVABLE PROPERTY RECEIVED UNDER GIFT WAS SUBJECT TO ENCUMBRANCE BY WAY OF DEVELOPMENT RIGHTS TRANSFERRED BY THE DONOR TO SHRI BABULAL KHANDELWAL & OTRS. 2. THE LEARNED ASST. COMMISSIONER OF INCOME TAX ERRED IN LEVYING PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 AND HAVING REGARD TO THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW TH E APPELLANT DENIES HER LIABILITY TO PAY ANY PENALTY UNDER THE SAID SECTION. THE APPELLANT CRAVES LEAVE TO ADD TO ALTER AMEND AND OR DELETE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE WHO DERIVES INCOME FROM HOUSE PROPERTY, SHARE TRADING BUSINESS AND CAPITAL GAIN ON SALE OF SHARES HAD E - FILED HER RETURN OF INCOME FOR A.Y. 2008 - 09 ON 30.03.2010, DECLARING TOTAL INCOME OF RS. 1,03,39,200/ - . THE RETURN OF INCOME FILED BY THE ASSESSEE WAS P ROCESSED AS SUCH UNDER SEC. 143(1) OF THE ACT. SUBSEQUENTLY, T HE CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY ASSESSMENT UNDER SEC. 143(2) . 3. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS IT WAS OBSERVED BY THE A.O THAT THE ASSESSEE HAD S OLD A PLOT NO. B - 16 ADMEASURING 1089 SQ. Y AR DS ( OUT OF PLOT NO. 51 ) SITUATED AT 55, V.L MEHTA ROAD, JUHU SCHEME, VILE PARLE (W), MUMBAI , TOGETHER WITH THE RIGHT TO USE THE FSI AND ALL BENEFITS GENERATED FROM THE SAID PROPERTY TO SH. BABULAL KHANDELWAL & OR S. ON A PER USAL OF THE DETAILS , IT WAS NOTICED BY THE A.O THAT THOUGH THE ASSESSEE HAD SOLD THE AFORESAID PROPERTY VIDE A REGISTERED DEED OF CONVEYANCE DATED 30.12.2007 FOR AN AMOUNT OF RS. 7,00,00,000/ - , BUT HAD COMPUTED THE L ONG TERM CAPITAL GAIN (FOR SHORT LTCG) AT RS. 53,92,569/ - BY ADOPTING THE SALE CONSIDERATION AT RS. 6,25,00,000/ - . IT WAS SUBMITTED BY THE ASSESSEE THAT THE AFORESAID PROPERTY WAS RECEIVED BY HER AS A GIFT FROM HER MOTHER SMT. VIMLA D. SANGHVI , VIDE A REGISTERED GIFT DEED DATED 01.09.2003 . FURTHER, I T WAS THE CLAIM OF THE ASSESSEE THAT HER MOTHER PRIOR P A G E | 3 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . TO GIFTING OF THE PROPERTY HAD ENTERED INTO A J OINT D EVELOPMENT A GREEMENT (FOR SHORT JDA) , DATED 05.02.2003 WITH SH. BABULAL KHANDELWAL & ORS. FOR A CO NSIDERATION OF RS. 2.16 CRORE AND HAD RECEIVED A N ADVANCE OF RS. 75,00,000/ - . HOWEVER, DUE TO VARIOUS DISPUTES AND LITIGATIONS AMONGST THE FAMILY MEMBERS THE DEVELOPMENT AGREEMENT DID NOT MATERIALISE AND HENCE COULD NOT BE IMPLEMENTED . IT WAS SUBMITTED BY THE ASSESSEE THAT SHE HAD THEREAFTER SOLD THE PROPERTY UNDER CONSIDERATION FOR A SUM OF RS. 7 CRORES TO THE SAME PERSON I.E SH. BABULAL KHANDELWAL & ORS, WHO AFTER ADJUSTING THE AMOUNT OF RS. 75,00,000/ - WHICH WAS EARLIER GIVEN BY HIM T O HER MOTHER SMT. VIMLA D. SANGHVI PAID THE BALANCE AMOUNT OF RS. 6,25,00,000/ - TO THE ASSESSEE. IT WAS CLAIMED BY THE ASSESSEE THAT THE AMOUNT OF RS. 75,00,000/ - WHICH WAS EARLIER RECEIVED AS AN ADVANCE A T THE TIME OF ENTERING INTO THE JDA DATED 05.02.2003 WAS OFFERED BY HER MOTHER FOR TAX IN THE ASSESSMENT YEAR 2003 - 04. THE ASSESSEE IN ORDER TO FORTIFY HER AFORESAID CLAIM SUBMITTED BEFORE THE A.O THAT THERE WAS A CLEAR MENTION OF THE JDA EARLIER ENTERED INTO BETWEEN HER MOTHER AND THE DEVELOPER I.E. SH. BABULAL KHANDELWAL & ORS IN THE REGISTERED CONVEYANCE DEED DATED 30.12.2007. HOWEVER, AS THE ASSESSEE COULD NOT PLACE ON RECORD ANY DOCUMENTARY EVIDENCE WHICH COULD PROVE HER CLAIM THAT AN ADVANCE OF RS. 75,00, 000/ - WAS EARLIER RECEIVED BY HER MOTHER AND OFFERED FOR TAX IN A.Y. 2003 - 04, THEREFORE , THE A.O ADOPTED THE SALE CONSIDERATION AT RS. 7,00,00,000/ - AND REWORKED OUT THE LTCG A T RS. 1,28,92,569/ - . THE A.O WHILE CULMINATING THE ASSESSMENT ALSO INITIATED PEN ALTY PROCEEDINGS UNDER SEC. 271(1)(C) OF THE ACT. FURTHER, THE A.O ALSO ISSUED A SHOW CAUSE NOTICE (FOR SHORT SCN), DATED 30.12.2010 UNDER SEC. 274 R.W.S 271 OF THE ACT TO THE ASSESSEE, THEREIN CALLING UPON HER TO EXPLAIN AS TO WHY PENALTY UNDER SEC. 2 71(1)(C) MAY NOT BE IMPOSED ON HER. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A). THE CIT(A) VIDE HIS ORDER DATED 30.09.2011 CONFIRMED THE ADDITION OF RS. 75,00,000/ - MADE BY THE A.O AND DISMISSED THE APPEAL. 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) CARRIED THE SAME IN APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL AFTER DELIBERATING ON THE P A G E | 4 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . CONTENTIONS ADVANCED BY THE ASSESSEE WAS HOWEVER NOT PERSUADED TO ACCEPT THE SAME. IT WAS OBSERVED BY THE TRIBU NAL THAT THE CONVEYANCE DEED DATED 30.12.2007 EXECUTED BY THE ASSESSEE IN FAVOUR OF THE PURCHASER WAS DULY WITNESSED BY THE MOTHER OF THE ASSESSEE I.E SMT. VIMLA D . SANGHVI. FURTHER, IT WAS OBSERVED BY THE TRIBUNAL THAT THE ASSESSEE HAD FAILED TO PLACE ON RECORD ANY DOCUMENT EVIDENCING HER CLAIM THAT A PART OF THE SALE CONSIDERATION OF RS. 75 LAC WAS EARLIER RECEIVED AS ADVANCE BY HER MOTHER AND OFFERED FOR TAX IN HER HANDS . RATHER, ON THE CONTRARY IT WAS OBSERVED BY THE TRIBUNAL THAT THE ASSESSEE BY EXECUTING THE RECEIPT OF CONSIDERATION OF RS. 7 CRORE HAD ACKNOWLEDGED THAT THE ENTIRE SALE CONSIDERATION WAS RECEIVED BY HER. IN THE BACKDROP OF THE AFORESAID OBSERVATIONS THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED BY THE TRIBUNAL , VI DE ITS ORDER DATED 13.04.2016 VIZ. MRS. MINAXI KISHORE MEHTA VS. ITO, WARD - 21(1), MUMBAI (ITA NO. 7871/MUM/2011) . 6. THE A.O AFTER THE DISMISSAL OF THE QUANTUM APPEAL OF THE ASSESSEE BY THE CIT(A) , AGAIN ISSUED A SHOW CAUSE NOTICE UNDER SEC. 274 R.W.S. 271(1)(C) , DATED 12.02.2013 AND CALLED UPON THE ASSESSEE TO EXPLAIN AS TO WHY PENALTY UNDER SEC. 271(1)(C) MAY NOT BE IMPOSED ON HER. THE ASSESSEE FILED HER REPLY BEFORE THE A.O AND TRIED TO IMPRESS UPON HIM THAT NO PENALTY UNDER SEC. 271(1)(C) WAS CALLED FOR IN HER CASE. HOWEVER, THE A.O DID NOT FIND FAVOUR WITH THE CONTENTION S ADVANCED BY THE ASSESSEE THAT NO PENALTY UNDER SEC. 271(1)(C) WAS LIABLE TO BE IMPOSED . IT WAS OBSERVED BY THE A.O THAT THE ADVANCE OF RS. 75,00,000/ - WHICH AS CLAIMED BY THE ASSESSEE WAS EARLIER GIVEN BY THE DEVELOPER TO THE ASSESSES MOTHER WOULD ONLY BE AN APPLICATION OF THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE AND NOT A DIVERSION AT SOURCE BY VIRTUE OF ANY OVERRIDING TITLE OVER THE PROPERTY . THE A.O ON THE BASIS OF HIS AFORESAID OBSERVATIONS CONCLUDED THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME AND THEREBY CONCEALED HER INCOME. ON THE BASIS OF HIS AFORESAID DELIBERATIONS THE A.O IMPOSED A PENALTY UNDER SEC. 271(1)(C) OF RS. 16,99, 500/ - ON THE ASSESSEE . P A G E | 5 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . 7. AGGRIEVED, THE ASSESSEE ASSAILED THE PENALTY IMPOSED BY THE A.O UNDER SEC. 271(1)(C) IN APPEAL BEFORE THE CIT(A). HOWEVER, THE CIT( A) WAS NOT PERSUADED TO SUBSCRIBE TO THE CONTENTIONS ADVANCED BY THE ASSESSEE, AND VIDE HIS ORDER DATED 22.08.2014 DISMISSED HER APPEAL. 8. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) UPHOLDING THE PENALTY IMPOSED BY THE A.O UNDER SEC. 271 (1)(C) HA S CARRIED THE MATTER IN APPEAL BEFORE US. THE LEARNED AUTHORIZED REPRESENTATIVE (FOR SHORT A.R.) FOR THE ASSESSEE AT THE VERY OUTSET OF THE HEARING OF THE APPEAL , TAKING US THROUGH THE FACTS OF CASE SUBMITTED, THAT PART OF THE SALE CONSIDERATION OF RS. 75,00,000/ - WAS RECEIVED BY THE MOTHER OF THE ASSESSEE I.E. SMT. VIMLA D. SANGHVI ON 05.02.2003 AT THE TIME WHEN SHE HAD ENTERED INTO A JDA WITH THE AFORESAID DEVELOPER VIZ. SH. BABULAL KHANDELWAL AND ORS. IT WAS SUBMITTED BY THE LD. A.R THAT THE A SSESSEE ON RECEIPT OF THE BALANCE SALE CONSIDERATION OF RS. 6,25,00,000/ - FROM THE SAID DEVELOPER AT THE TIME OF EXECUTION OF THE REGISTERED CONVEYANCE DEED , DATED 30.12.2007, HAD UNDER A BONAFIDE BELIEF WORKED OUT THE LTCG BY ADOPTING THE SALE CONSIDERATI ON AT RS. 6,25,00,000/ - I.E THE AMOUNT WHICH WAS ACTUALLY RECEIVED BY HER . IT WAS SUBMITTED BY THE LD. A.R THAT PURSUANT TO THE JDA DATED 05.02.2003 ENTERED INTO BY THE MOTHER OF THE ASSESSEE SMT. VIMLA D. SANGHVI AND THE AFORESAID DEVELOPER I.E. SH. BABULAL KHANDELWAL & ORS . , CERTAIN RIGHTS PERTAINING TO THE PROPERTY UNDER CONSIDERATION GOT VESTED WITH THE SAID DEVELOPER AND IN LIEU T HEREOF AN AMOUNT OF RS. 75,00,000/ - WAS PAID TO HER . ALTERNATIVELY, THE LD. A.R. ASSAILED THE VALIDITY OF THE JURISDICT ION ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C) IN THE HANDS OF THE ASSESSEE . IT WAS SUBMITTED BY THE LD. A.R THAT THE A.O WITHOUT PUTTING THE ASSESSEE TO NOTICE AS REGARDS THE DEFAULT FOR WHICH PENALTY WAS SOUGHT TO BE IMPOSED ON HER , HAD THUS WRONGLY ASSUMED JURISDICTION AND IMPOSED PENALTY UNDER SEC. 271(1)(C) . THE LD. A.R IN ORDER TO DRIVE HOME HIS AFORESAID CONTENTION DREW OUR ATTENTION TO THE COPY OF THE SHOW CAUSE NOTICE , DATED 30.12.201 0 (COPY PLACED ON RECORD) . THE LD. A.R TA KING US THROUGH THE SCN SUBMITTED THAT AS THE A.O HAD FAILED TO STRIKE OFF THE P A G E | 6 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . IRRELEVANT DEFAULT, THEREFORE, THE ASSESSEE HAD REMAINED DIVESTED OF AN OPPORTUNITY TO EXPLAIN AS TO WHY NO PENALTY UNDER SEC. 271(1)(C) OF THE ACT WAS LIABLE TO BE IMPOSED ON HER . THE LD. A.R IN SUPPORT OF HIS AFORESAID CONTENTION RELIED ON AN ORDER OF A COORDINATE BENCH OF THE TRIBUNAL VIZ. ITAT , MUMBAI BENCH C, MUMBAI IN THE CASE OF M/S ORBIT ENTERPRISES VS. ITO 15(2)(2), MUMBAI (ITA NO. 1596 & 1597/MUM/2014, DATED 01.09.2 017) (COPY PLACED ON RECORD). 9 . PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. THE LD. D.R. OBJECTED TO THE ASSAILING OF THE VALIDITY OF JURISDICTION ASSUMED BY THE A.O FOR THE REASON THAT NO SUCH SPECIFIC GROUND OF APPEAL WAS RAISED BY THE ASSESSEE. ON MERITS , THE LD. D.R T OOK SUPPORT OF THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OF F THE QUANTUM APPEAL OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION . IT WAS SUBMITTED BY THE LD. D.R THAT AS THE ASSESSEE HAD SUPPRESSED THE LTCG BY AN AMOUNT OF RS. 75,00,000/ - , THEREFORE, THE CIT(A) HAD RIGHTLY CONFIRMED THE PENALTY IMPOSED BY THE A.O UNDER SEC. 271(1)(C) OF THE ACT. 10 . WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. WE SHALL FIRST ADVERT TO THE CHALLENGE THROWN BY THE LD. A.R TO THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR LEVYING PENALTY UNDER SEC. 271(1)(C ) ON THE ASSESSEE. WE FIND THAT THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C) HA S BEEN CHALLENGE D FOR THE FIRST TIME BEFORE US. IT IS THE CASE OF THE ASSESSEE THAT AS THE IRRELEVANT DEFAULT IN THE SHOW CAUSE NOTICE DATED 30.12.2010 WAS NOT STRUCK OFF BY THE A.O, HENCE THE ASSESSEE WAS NOT PUT TO NOTICE AS REGARDS THE DEFAULT FOR WHICH SHE WAS CALLED UPON TO EXPLAIN AS TO WHY PENALTY UNDER SEC. 271(1)(C) MAY NOT BE IMPOSED ON HER . WE HAVE DELIBERATED ON THE OBJECTION RAISED BY THE LD. D.R THAT AS THE ASSESSEE HAD FAILED TO RAISE A SPECIFIC GROUND OF APPEAL AS REGARDS T HE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C) ON T HE ASSESSEE , THUS P A G E | 7 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . T HE SAME COULD NOT BE LOOKED INTO WHILE DISPOSING OF F THE PRESENT APPEAL. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE OBJECTION RAISED BY THE LD. D.R AND FIND SUBSTANTIAL FORCE IN THE SAME. WE ARE PERSUADED TO BE IN AGREEMENT WITH THE CONTENTION OF THE LD. D.R THAT AS THE ASSESSEE HAD NEITHER CHALLENGED THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C) BEFORE THE LOWER AUTHORITIES , NOR HA S RAISED ANY SPECIFIC GROUND OF APPEAL BEFORE US, THUS THE SAME CANNOT BE LOOKED INTO BY US WHILE DISPOSING OFF THE PRESENT APPEAL. IN THIS REGARD , WE MAY HEREIN OBSERVE THAT AS PER RULE 11 OF THE APPELLATE TRIBUNAL RULES, 1963 AN APPELLANT SHALL NOT, EXCEPT WITH THE LEAVE OF THE TRIBUNAL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET F ORTH IN THE MEMORANDUM OF APPEAL. THUS, IN THE ABSENCE OF A GROUND OF APPEAL HAVING BEEN RAISED BY THE ASSESSEE BEFORE US AS REGARDS THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C), WE REFRAIN FROM ADVERTING TO AND THEREIN ADJUDICATING THE SAME. FURTHER, WITHOUT PREJUDICE TO OUR AFORESAID OBSERVATIONS, WE FIND THAT EVEN OTHERWISE THE ASSESSEE WHILE CHALLENGING THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING OF PENALTY UNDER SEC. 271(1)(C), HA S F AILED TO COME UP WITH THE COMPLETE FACTS AS REGARDS THE ISSUE UNDER CONSIDERATION. WE FIND THAT THOUGH THE ASSESSEE HAD PLACED ON RECORD THE COPY OF THE SHOW CAUSE NOTICE, DATED 30.12.2010 ISSUED BY THE A.O UNDER SEC. 274 R.W.S 271 AT THE TIME OF PASSING THE ASSESSMENT ORDER, BUT HAD LOST SIGHT OF THE SUBSEQUENT SHOW CAUSE NOTICE, DATED 12.02.2013 WHICH WAS ISSUED BY THE A.O. UNDER SEC. 274 R.W.S 271 OF THE ACT. WE THUS , ARE OF THE CONSIDERED VIEW THAT AS THE COMPLETE FACTS/RECORDS HAD NOT BEEN PLACED ON RECORD BY THE ASSESSEE, THUS THE ADJUDICATION OF THE ISSUE PERTAINING TO THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O , WHICH THE ASSESSEE HAD FOR THE VERY FIRST TIME RAISED BEFORE US CANNOT ALSO BE PROCEEDED WITH FOR THE SAID REASON . 11 . WE SHA LL NOW ADVERT TO THE MERITS INVOLVED IN THE CASE UNDER CONSIDERATION. WE FIND THAT THE ASSESSEE HAD BEEN SUBJECTED TO PENALTY UNDER SEC. 271(1)(C) ON THE GROUND THAT SHE HAD SUPPRESSED THE LONG TERM P A G E | 8 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . CAPITAL G AIN ARISING FROM THE SALE OF THE SUBJECT PROPERT Y BY UNDERSTATING THE CONSIDERATION RECEIVED BY HER AS A MEMBER OF A SOCIETY VIZ. KAPOLE CO - OPERATIVE HOUSING SOCIETY LIMITED, ON TRANSFER OF HER LEASEHOLD RIGHTS IN RESPECT OF A PLOT NO. B - 16 ADMEASURING 1089 SQ. YARDS (OUT OF PLOT NO. 51) TOGETHER WITH THE BUNGALOW COMPRISING OF AN AREA ADMEASURING 5000 SQ. FEET FSI KNOWN AS NINAND STANDING THEREON CORRESPONDING TO C.S.T NO. 848 OF VILLAGE JUHU SITUATE AT 55, V.L MEHTA ROAD, JUHU SCHEME, VILE PARLE (W), MUMBAI TO SH. BABULAL KHANDELWAL & OTHERS BY AN AMOUNT OF RS. 75 LAC. ON A PERUSAL OF THE ORDERS OF THE LOWER AUTHORITIES , IT EMERGES THAT THOUGH THE ASSESSEE HAD SOLD THE AFORESAID PROPERTY VIDE REGISTERED DEED OF CONVEYANCE DATED 30.12.2007 FOR AN AMOUNT OF RS. 7,00,00,000/ - , BUT SHE HAD IN HER RETUR N OF INCOME COMPUTED THE L ONG TERM CAPITAL GAIN (FOR SHORT LTCG) AT RS. 53,92,569/ - BY ADOPTING THE SALE CONSIDERATION AT RS. 6,25,00,000/ - . IT IS THE CASE OF THE ASSESSEE THAT HER MOTHER SMT. VIMLA D. SANGHVI WHO HAD ENTERED INTO A JDA DATED 05.02.2003 WITH THE AFORESAID PURCHASER DEVELOPER I.E. SH. BABULAL KHANDELWAL & ORS . HAD EARLIER RECEIVED AN AMOUNT OF RS. 75 LAC, WHICH PURSUANT TO VESTING OF CERTAIN RIGHTS PERTAINING TO THE PROPERTY UNDER CONSIDERATION WITH THE SAID DEVELOPER , WAS THUS ALREADY OFF ERED FOR TAX BY HER. IN THE BACKDROP OF HER AFORESAID CONTENTION, IT IS THE CLAIM OF THE ASSESSEE THAT AS THE AMOUNT OF RS. 75 LAC WAS ALREADY RECEIVED AND OFFERED FOR TAX IN THE HANDS OF HER MOTHER, THUS FOR THE SAID REASON SHE HAD ON THE SALE OF THE PROP ERTY VIDE REGISTERED CONVEYANCE DEED, DATED 30.12.2007, COMPUTED THE LTCG BY TAKING THE SALE CONSIDERATION AT RS. 6,25,00,000/ - I.E THE AMOUNT WHICH WAS RECEIVED BY HER . WE FIND THAT THE ASSESSEE HAD RAISED TWO FOLD CONTENTIONS TO SUPPORT HER CLAIM FOR COM PUTING THE LTCG BY TAKING THE SALE CONSIDERATION AT AN AMOUNT OF RS. 6,25,00,000/ - VIZ. (I). THAT THE AMOUNT OF RS. 75 LAC WAS EARLIER RECEIVED AS ADVANCE BY HER MOTHER SMT. VIMLA D. SANGHVI FROM THE AFORESAID DEVELOPER I.E SH. BABULAL KHANDELWAL & ORS . AT THE TIME OF ENTERING INTO THE JDA DATED 05.02.2003 , AND WAS OFFERED FOR TAX BY HER MOTHER; AND (II). THAT SHE WAS ONLY IN RECEIPT OF THE BALANCE SALE P A G E | 9 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . CONSIDERATION OF RS. 6,25,00,000/ - FROM THE AFORESAID DEVELOPER AT THE TIME OF EXECUTION OF THE REGISTERE D CONVEYANCE DEED. 1 2 . WE HAVE DELIBERATED AT LENGTH ON THE AFORESAID CONTENTIONS OF THE ASSESSEE AND ARE UNABLE TO PERSUADE OURSELVES TO ACCEPT THE SAME. WE FIND THAT THE CLAIM OF THE ASSESSEE THAT AN AMOUNT OF RS. 75 LAC WAS EARLIER RECEIVED BY HER MOT HER SMT. VIMLA D. SANGHVI FROM THE DEVELOPER I.E SH. BABULAL KHANNDELWAL & ORS. AND WAS OFFERED BY HER FOR TAX, IS NOTHING BETTER THAN A CLAIM MADE IN THE THIN AIR. FURTHER, THE CLAIM OF THE ASSESSEE THAT AS SHE HAD RECEIVED ONLY THE BALANCE AMOUNT OF RS. 6,25,00,000/ - FROM THE DEVELOPER VIZ. SH. BABULAL KHANNDELWAL & ORS., HENCE FOR THE SAID REASON WHILE COMPUTING THE LTCG IN RESPECT OF THE SUBJECT PROPERTY, SHE HAD ADOPTED THE SALE CONSIDERATION AT RS. 6,25,00,000/ - , IS ALSO FOUND TO BE INCORRECT. ON A PE RUSAL OF THE DEED OF CONVEYANCE , IT EMERGES THAT THE ASSESSEE WHO IS A MEMBER OF A SOCIETY VIZ. KAPOLE CO - OPERATIVE HOUSING SOCIETY LIMITED, HAD TRANSFERRED HER LEASEHOLD RIGHTS GRANTED BY THE SOCIETY IN RESPECT OF A PLOT NO. B - 16 ADMEASURING 1089 SQ. YARD S (OUT OF PLOT NO. 51) TOGETHER WITH THE BUNGALOW COMPRISING OF AN AREA ADMEASURING 5000 SQ. FEET FSI KNOWN AS NINAND STANDING THEREON CORRESPONDING TO C.S.T NO. 848 OF VILLAGE JUHU SITUATE AT 55, V.L MEHTA ROAD, JUHU SCHEME, VILE PARLE (W), MUMBAI TO SH. BABULAL KHANDELWAL & OTHERS FOR A CONSIDERATION OF RS. 7,00,00,000/ - . FURTHER, THE STATEMENT OF RECEIPTS FORMING PART OF THE DEED OF CONVEYANCE REVEALS THAT THE VENDOR I.E THE ASSESSEE HAD DULY ACKNOWLEDGED THE RECEIPT OF AN AMOUNT OF RS. 7,00,00,000 / - ON THE TRANSFER OF HER AFORESAID RIGHTS FROM THE PURCHASERS. RATHER, THE COMPLETE DETAILS OF THE DIVERSE PAYMENTS MADE FROM TIME TO TIME BY THE PURCHASE R S TO THE ASSESSEE VIDE ACCOUNT PAYEE CHEQUES DRAWN ON UNION BANK OF INDIA, OSHIWARA BRANCH, ARE MENTIONED. WE FIND THAT THE TRIBUNAL WHILE DISPOSING OFF THE QUANTUM APPEAL OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION VIZ. MRS. MINAXI KISHORE MEHTA VS. ITO, WARD - 21(1), MUMBAI (ITA NO. 7871/MUM/2011 ; DATED 13.04.2016 ) , HAD ALSO OBSERVED THAT T HE ASSESSEE P A G E | 10 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . HAD ACKNOWLEDGED THE RECEIPT OF THE ENTIRE SALE CONSIDERATION OF R S . 7,00,00,000/ - BY HER. 13. WE HAVE DELIBERATED ON THE ISSUE UNDER CONSIDERATION IN THE BACKDROP OF THE MATERIAL AVAILABLE ON RECORD. WE ARE UNABLE TO COMPREHEND THAT NOW WHEN THE ASSESSEE ON THE ONE HAND HAD ACKNOWLEDGED RECEIPT OF AN AMOUNT OF RS. 7,00,00,000/ - VIDE NINE ACCOUNT PAYEE CHEQUES DRAWN ON UNION BANK OF INDIA, OSHIWARA BRANCH, FROM THE AFORESAID PURCHASER S , THAN HOW A CLAIM RAISED BY HER TO THE CONTRARY THAT SHE H AD ONLY RECEIVED AN AMOUNT OF RS. 6,25,00,000/ - WOULD SURVIVE. WE ARE OF THE CONSIDERED VIEW THAT AS THE EXPLANATION OF THE ASSESSEE WHICH CLEARLY MILITATE S AGAINST THE MATERIAL AVAILABLE ON RECORD IS FOUND TO BE FALSE , THUS THE CIT(A) HAD RIGHTLY SUSTAINE D THE PENALTY OF R S . 16,99,500/ - IMPOSED BY THE A.O UNDER SEC. 271(1)(C) FOR SUPPRESSI ON BY THE ASSESSEE OF THE LONG TERM CAPITAL GAIN ARISING FROM THE TRANSFER OF HER LEASEHOLD RIGHTS IN THE SUBJECT PROPERTY. WE THUS , FINDING NO INFIRMITY IN THE ORDER OF THE CIT(A) SUSTAINING THE PENALTY OF RS. 16,99,500/ - IMPOSED BY THE A.O UNDER SEC. 271(1)(C) OF THE ACT, UPHOLD THE SAME. 10. THE APPEAL OF THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 T H SEPTEMBER, 2018 S D / - S D / - (R.C. SHARMA) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 19 .0 9 .2018 PS. ROHIT P A G E | 11 ITA NO . 6766 /MUM/201 4 AY: 2008 - 09 MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1) . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI