Shri Narendrakumar M. Patel, Vadodara V. The Income Tax Officer, Ward-2(3), Baroda

ITA 716/AHD/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6174 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 26-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 22-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANITA SURESH HARDASANI
• Assessee Lawyers: M K PATEL
• Keywords: Capital asset; Revised return; Bonafide mistake
• Section: 142(1); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA NO. 716/AHD/2016 (ASSESSMENT YEAR:2011-12) NARENDRAKUMAR M PATEL 302, HARSH COMPLEX, OLD PADRA ROAD, VADODARA APPELLANT VS. ITO, WARD 2(3), AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA - 390007 RESPONDENT PAN: ADBPP3881E /BY ASSESSEE : SHRI M. K. PATEL, A.R. /BY REVENUE : SMT. ANITA SURESH HARDASANI, SR. D.R. /DATE OF HEARING : 26.04.2017 /DATE OF PRONOUNCEMENT : 27.04.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 ARISES AGAINST THE CIT(A)-5, VADODARAS ORDER DATED 17.12.2015, IN APP EAL NO. CAB/5- 340/2014-15, AFFIRMING ASSESSING OFFICERS ACTION I N IMPOSING PENALTY OF RS.3,06,548/- IN ORDER DATED 23.09.2014, IN PROCEED INGS U/S.271(1)(C) OF THE INCOME TAX ACT, 1961, IN SHORT THE ACT. ITA NO. 716/AHD/2016 (NARENDRAKUMAR M PATEL VS. ITO ) A.Y. 2011-12 - 2 - 2. WE COME TO THE RELEVANT FACTS. THIS ASSESSEE FI LED HIS RETURN ON 29.03.2012 STATING INCOME OF RS.10,04,760/-. THE S AME WAS SUMMARILY PROCESSED. THE ASSESSING OFFICER ISSUED SCRUTINY N OTICES THEREAFTER. WE NOTICE FROM PARA 5 OF ASSESSMENT ORDER DATED 16.03. 2014 THAT HE ISSUED SECTION 142(1) NOTICE DATED 08.10.2013 SPECIFICALLY ASKING THE ASSESSEE IF HE HAD OMITTED TO HAVE INCLUDED ANY INCOME IN THE ABOV ESTATED RETURN. THE ASSESSEE APPEARS TO HAVE FILED HIS WRITTEN SUBMISSI ON DATED 12.02.2014 SUBMITTING TO HAVE OFFERED ALL HIS INCOME TAXABLE I N THE IMPUGNED ASSESSMENT YEAR. THAT WAS NOT TO BE THE CASE. THE ASSESSING OFFICER THEN QUOTED DEPARTMENTAL INFORMATION INDICATING THE ASSESSEE TO HAVE SOLD TWO PIECES OF LAND FOR RS.87LACS EACH ON 04.10.2010. HE THEREFOR E PUT UP THE ASSESSEE ON NOTICE WHO IN TURN FILED REPLY INTER ALIA STATING T HEREIN THAT HE HAD SOLD AGRICULTURAL LAND PURCHASED ON 02.05.1995, IN BLOCK NO.279, VILLAGE JASPUR, TALUKA: PADRA, DISTT. VADODARA ADMEASURING 11534 SQ .MTR. FOR A CONSIDERATION OF RS.87LACS. HE CLARIFIED THAT THE SAID LAND WAS SITUATED AT A DISTANCE OF 17 KILOMETERS FROM NEAREST MUNICIPALITY . AND FURTHER THAT THE ABOVESTATED VILLAGE POPULATION WAS LESS THAN 10,000 . THE ASSESSEE THEREFORE STATED THAT THE ABOVE LAND SOLD WAS NOT A CAPITAL A SSET U/S.2(14) OF THE ACT. 3. THE ASSESSING OFFICER THEREAFTER SOUGHT INFORMAT ION FROM THE SUB- REGISTRAR CONCERNED. HE INFORMED THAT THE ASSESSEE HAD SOLD NON AGRICULTURAL LANDS OF 5187.74SQ.MTRS. FOR RS.62,25,300/- AND AGR ICULTURAL LAND MEASURING 6346.26SQ.MTRS. FOR RS.23.79LACS; TOTALING TO RS.86 ,05,200/-. HE THEREFORE TOOK A VERY STRONG NOTICE THAT THE ASSESSEE HAD TRI ED TO MISLEAD THE DEPARTMENT IN CLAIMING THE ABOVE NON AGRICULTURAL LAND TO BE N OT A CAPITAL ASSET. ALL THIS RESULTED IN LONG TERM CAPITAL GAINS ADDITION OF RS. 19,39,327/- BEING MADE IN ASSESSMENT ORDER. THE ASSESSING OFFICER FURTHER IN ITIATED THE IMPUGNED PENALTY PROCEEDING ALLEGING BOTH CONCEALMENT OF INC OME AS WELL AS ITA NO. 716/AHD/2016 (NARENDRAKUMAR M PATEL VS. ITO ) A.Y. 2011-12 - 3 - FURNISHING OF INACCURATE PARTICULARS U/S.271(1)(C) OF THE ACT. THE ASSESSEE DID NOT PREFER ANY APPEAL AGAINST THE SAID ADDITION. 4. WE NOW ADVERT TO THE IMPUGNED PENALTY PROCEEDING S. THE ASSESSEE PLEADED TO BE A SENIOR CITIZEN. HE EXPLAINED THAT THE THOUGHT OF DECLARING THE ABOVE LONG TERM CAPITAL GAINS SKIPPED HIS MIND AS T HE SALE CONSIDERATION HAD NOT BEEN RECEIVED IN THE IMPUGNED ASSESSMENT YEAR. HE THEREFORE CLAIMED THE SAME TO BE A BONAFIDE ERROR WHEREIN HE DELIBERATELY OFFERED THE ABOVE CAPITAL GAINS FOR TAXATION. THE ASSESSING OFFICER HOWEVER QUOTED ALL THE ABOVE QUANTUM DEVELOPMENTS TO TREAT ASSESSEES ACT AND CO NDUCT AS THAT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AS W ELL AS CONCEALMENT OF INCOME TO IMPOSE THE IMPUGNED PENALTY OF RS.3,06,54 8/-. 5. THE CIT(A) UPHOLDS ASSESSING OFFICERS ACTION AS UNDER: 5.3 I HAVE CONSIDERED THE FACTS AND THE CIRCUMSTA NCES OF THE CASE, THE OBSERVATIONS OF THE ASSESSING OFFICER, MATERIAL AVA ILABLE ON THE RECORD AND THE JUDICIAL PRONOUNCEMENTS ON THE SUBJECT. IN THIS CASE, THE ASSESSEE HAD OMITTED TO OFFER LTCG OF RS. 19,39,327/- ON TRANSFE R OF TWO PLOTS OF LAND, TO TAX AND HAS CLAIMED THAT THE MISTAKE WAS INADVERT ENT AND THERE WAS NO INTENTION TO CONCEAL THE PARTICULARS OF INCOME. THE ASSESSEE HAS SUBMITTED THAT THE ERROR IN THE RETURN OF INCOME CR EPT IN BECAUSE THE CONSIDERATION ON SALE OF THE PROPERTIES WAS RECEIVE D BY HIM IN THE IMMEDIATELY PRECEDING YEAR, WHEREAS THE PROPERTIES WERE REGISTERED DURING THE YEAR. SINCE THE CONSIDERATION FOR TRANSFER OF THE PROPERTIES WA S RECEIVED IN A.Y. 2010-11, THE ASSESSEE FORGOT TO OFFER THE L TCG IN THE YEAR UNDER CONSIDERATION AS THE SALE DEED WAS REGISTERED DURIN G THE YEAR. HOWEVER, IT WAS OBSERVED THAT THE ASSESEE HAD FAILED TO OFFER T HE LTCG IN THE RETURN OF INCOME FOR A.Y. 2010-11 ALSO. THE ASSESSEE HAS SUBM ITTED THAT AS AS SOON AS THE MISTAKE WAS BROUGHT TO HIS NOTICE, HE ACCEPT ED THE SAME AND PAID THE DUE TAXES IMMEDIATELY. HOWEVER, THE FACT REMAINS TH AT THE ACCEPTANCE OR SURRENDER OF UNDISCLOSED INCOME WAS NOT VOLUNTARY A ND IT WAS ONLY SURRENDERED ONCE THE SAME WAS DETECTED BY THE A SSESSING OFFICER. THE ASSESSEE HAS OFFERED AN EXPLANATION FOR HER FAILURE TO INCLUDE LTCG OF RS. 19,39,327/- IN HIS RETURN OF INCOME, HOWEVER, THE S AME IS NOT FOUND SATISFACTORY AND THEREFORE, THE PROVISIONS OF EXPLA NATION 1 TO SECTION 271(1)(C) ARE CLEARLY ATTRACTED IN THIS CASE. IN VI EW OF THIS, PENALTY MUST OBLIGATORILY BE IMPOSED IN THIS CASE IN VIEW OF CIT VS LAL CHAND TIRATH RAM, 225 ITR 675 (PUNJ), WHERE IT WAS HELD BY HON'B LE HIGH COURT THAT ITA NO. 716/AHD/2016 (NARENDRAKUMAR M PATEL VS. ITO ) A.Y. 2011-12 - 4 - MERE OFFERING OF AN EXPLANATION WOULD NOT ABSOLVE T HE ASSESSEE FROM THE LIABILITY OF PENALTY. IT IS NECESSARY FOR THE ASSES SEE TO (I) OFFER AN EXPLANATION AND (II) SUBSTANTIATE IT. FURTHERMORE, IN CIT VS GEO SEA FOODS, 244 ITR 44 (KER), IT HAS BEEN HELD THAT THE EXPLANA TION OF THE ASSESSEE MUST BE AN ACCEPTABLE EXPLANATION AND IF HE FAILS TO DIS CHARGE THE BURDEN, THE PRESUMPTION OF EXPLANATION 1 WILL BE AVAILABLE TO T HE ASSESSING OFFICER. IN VIEW OF THE ABOVE DISCUSSION, IT IS CLEAR THAT EXPL ANATION 1 TO SECTION 271(1)(C) IS ATTRACTED IN THIS CASE AND THE APPELLA NT IS LIABLE FOR PENALTY U/S 271(1)(C). 5.4 HON'BLE KERALA HIGH COURT HAS, IN THE CASE OF C IT VS A.SRINIVASA PAI, [2000] 242 ITR 29 (KER) HELD THAT, IN A CASE WHERE REVISED RETURN OFFERING ADDITIONAL INCOME WAS FILED AFTER DETECTION OF THE SAME BY THE REVENUE AUTHORITIES, BLAMEWORTHINESS ATTACHED TO THE ASSESS EE WITH REFERENCE TO ORIGINAL RETURN CANNOT BE AVOIDED BY FILING A FRESH RETURN, AFTER THE CONCEALMENT WAS DETECTED BY THE ASSESSING OFFICER. THUS, A RETURN, SO AS TO INCLUDE CONCEALED INCOME CANNOT BE TREATED AS REVIS ED RETURN. IN THIS CASE, THE ASSESSEE FILED REVISED RETURN SURRENDERING CERT AIN CREDITS AFTER ASSESSMENT PROCEEDINGS HAD STARTED, BOOKS OF ACCOUN TS IMPOUNDED AND SUMMONS ISSUED TO VARIOUS PERSONS, IT COULD NOT BE SAID THAT THE ASSESSEE WAS UNAWARE OF ON GOING PROCEEDINGS AND THE REVISED RETURN WAS FILED TO PLUG A LOOPHOLE AND ITAT WAS NOT JUSTIFIED IN CANCE LLING PENALTY. 5.5 IN CIT VS K.B.MADHUSUDAN 246 ITR 218 (KER), IT HAS BEEN HELD BY HON'BLE SUPREME COURT THAT IF AN AMOUNT IS ADDED OR DISALLO WED IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, IT IS DEEMED TO REPRE SENT THE INCOME IN RESPECT OF WHICH INACCURATE PARTICULARS HAVE BEEN, FILED. T HE ARGUMENT THAT THE PENALTY PROCEEDINGS ARE QUASI-CRIMINAL IN NATURE AN D INFERENCE OF MENS REA IS NECESSARY. THIS VIEW IS ALSO NOT TENABLE IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN CIT VS KALYANDAS RASTOGI, 193 ITR 713 (SC), WHERE HON'BLE SUPREME COURT HELD THAT A PENALTY IMPOSED F OR A TAX DELINQUENCY IS A CIVIL OBLIGATION, REMEDIAL AND COERCIVE IN NAT URE AND IS FAR DIFFERENT FROM PENALTY FOR A CRIME. IN THIS KIND OF PENALTY, ELEMENT OF MENS REA IS NOT REQUIRED. IN UNION OF INDIA VS DHARMENDRA TEXTILE PROCESSORS [2008] 166 TAXMAN 65 (SC), HON'BLE SUPREME COURT RE ITERATED THIS POSITION AND HELD THAT PENALTY U/S 271(1)(C) IS A C IVIL LIABILITY AND FOR ATTRACTING SUCH CIVIL LIABILITY, WILLFUL CONCEALMEN T IS NOT AN ESSENTIAL INGREDIENT AS IS CASE IN THE MATTER OF PROSECUTION U/S 276C. 5.6 IN THIS CASE, THE ASSESSEE HAS NOT SURRENDERED THE LTCG OF RS.67,87,271/- VOLUNTARILY. HOWEVER, EVEN IF IT WAS VOLUNTARY, THE SAME WOULD NOT HAVE PROTECTED THE ASSESSEE FROM THE CONSEQUENCES OF SEC TION 271(1)(C), IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN MAK DAT A P. LTD. VS CIT [2013] 358 ITR 593 (SC)/ [2013] 38 TAXRNANN.COM 558 (SC), WHERE IT HAS BEEN HELD THAT UNDER EXPLANATION 1 TO SECTION 271(1 )(C), VOLUNTARY DISCLOSURE OF CONCEALED INCOME DOES NOT ABSOLVE THE ASSESSEE FROM PENALTY U/S 271(1)(C) OF THE ACT, IF THE ASSESSEE FAILS TO OFFER AN EXPLANATION WHICH IS BONAFIDE AND PROVES THAT ALL THE MATERIAL FACTS HAV E BEEN DISCLOSED. HON'BLE SUPREME COURT HAS HELD AS UNDER- ITA NO. 716/AHD/2016 (NARENDRAKUMAR M PATEL VS. ITO ) A.Y. 2011-12 - 5 - '7. THE AO, IN OUR VIEW, SHALL NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE LIKE 'VOLUNTARY DISCLOSURE', 'BUY PEACE', 'AVOID LITIGATION', 'AMICABLE SETTLEMENT', ETC. TO EXPLAIN AWAY ITS CON DUCT. THE QUESTION IS WHETHER THE ASSESSEE HAS OFFERED ANY EXPLANATION FO R CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. EXPLANATION TO SECTION 271(1) RAISES A PRESUMPTION OF CONCEALMENT, WHEN A DIFFERENCE IS NOTICED BY THE AO, BETWEEN REPORTED A ND ASSESSED INCOME. THE BURDEN IS THEN ON THE ASSESSEE TO SHOW OTHERWIS E, BY COGENT AND RELIABLE EVIDENCE. WHEN THE INITIAL ONUS PLACED BY THE EXPLANATION, HAS BEEN DISCHARGED BY HIM, THE ONUS SHIFTS ON THE REVE NUE TO SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED THE INCOME AND NOT O THERWISE. 8. ASSESSEE HAS ONLY STATED THAT HE HAD SURRENDERED THE ADDITIONAL SUM OF RS.40,74,000/- WITH A VIEW TO AVOID LITIGATION, BUY PEACE AND TO CHANNELIZE THE ENERGY AND RESOURCES TOWARDS PRODUCTIVE WORK AN D TO MAKE AMICABLE SETTLEMENT WITH THE INCOME TAX DEPARTMENT. STATUTE DOES NOT RECOGNIZE THOSE TYPES OF DEFENCES UNDER THE EXPLANATION 1 TO SECTIO N 271(1)(C) OF THE ACT. IT IS TRITE LAW THAT THE VOLUNTARY DISCLOSURE DOES NOT RELEASE THE APPELLANT- ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. TH E LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A VOLUNTARY DISCLOSURE OF HIS CONCEALED INCOME, HE HAD TO BE ABSOLVED FROM PENALTY. 9. WE ARE OF THE VIEW THAT THE SURRENDER OF INCOME IN THIS CASE IS NOT VOLUNTARY IN THE SENSE THAT THE OFFER OF SURRENDER WAS MADE IN VIEW OF DETECTION MADE BY THE AO IN THE SEARCH CONDUCTED IN THE SISTER CONCERN OF THE ASSESSEE. IN THAT SITUATION, IT CANNOT BE SAID THAT THE SURRENDER OF INCOME WAS VOLUNTARY. AO DURING THE COURSE OF ASSE SSMENT PROCEEDINGS HAS NOTICED THAT CERTAIN DOCUMENTS COMPRISING O F SHARE APPLICATION FORMS, BANK STATEMENTS, MEMORANDUM OF ASSOCIAT ION OF COMPANIES, AFFIDAVITS, COPIES OF INCOME TAX RETURNS AND ASSESS MENT ORDERS AND BLANK SHARE TRANSFER DEEDS DULY SIGNED, HAVE BEEN IMPOUND ED IN THE COURSE OF SURVEY PROCEEDINGS UNDER SECTION 133A CONDUCTED ON 16.12.2003, IN THE CASE OF A SISTER CONCERN OF THE ASSESSEE. THE SURVE Y WAS CONDUCTED MORE THAN 10 MONTHS BEFORE THE ASSESSEE FILED ITS RETURN OF INCOME. HAD IT BEEN THE INTENTION OF THE ASSESSEE TO MAKE FULL AND TRUE DISCLOSURE OF ITS INCOME, IF WOULD HAVE FILED THE RETURN DECLARING AN INC OME INCLUSIVE OF THE AMOUNT WHICH WAS SURRENDERED LATER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. CONSEQUENTLY, IT IS CLEAR T HAT THE ASSESSEE HAD NO INTENTION TO DECLARE ITS TRUE INCOME. IT IS THE STA TUTORY DUTY OF THE ASSESSEE TO RECORD ALL ITS TRANSACTIONS IN THE BOOKS OF ACCO UNT, TO EXPLAIN THE SOURCE OF PAYMENTS MADE BY IT AND TO DECLARE ITS TRUE INCO ME IN THE RETURN OF INCOME FILED BY IT FROM YEAR TO YEAR.' 5.7 HON'BLE IT AT, RAJKOT BENCH HAS ALSO HELD IN TH E CASE OF PAWAN CONSTRUCTION VS ITO [2001] 78 ITD 176 (RAJKOT) THAT WHERE THE ASSESSEE HAD SURRENDERED CASH CREDITORS AFTER DETECTION OF T HE SAME BEING UNEXPLAINED, TO BUY PEACE OF MIND, PENALTY U/S 271( 1)(C) WAS VALID. SIMILAR VIEWS HAVE BEEN HELD BY HON'BLE ALLAHABAD HIGH COUR T IN THE CASES OF STANDARD HIND CO. VS C1T [2012] 22 TAXMANN.COM 62 ( ALL.) AND SUNIL CHAND GUPTA VS CIT [2013] 35 TAXMANN.COM 435 (ALL.) . ITA NO. 716/AHD/2016 (NARENDRAKUMAR M PATEL VS. ITO ) A.Y. 2011-12 - 6 - 5.8 HON'BLE ITAT, DELHI BENCH HAS IN THE CASE OF SA NJAY ENTERPRISES (P.) LTD. VS ITO, [2012] 17 TAXMANN.COM 94 (DELHI), HAS HELD THAT IF AN ASSESSEE SURRENDERS ANY INCOME AFTER DEPARTMENT HAS COLLECTE D INCRIMINATING MATERIAL WITH REGARD TO SUCH INCOME, IT CANNOT BE C ALLED A VOLUNTARY SURRENDER FOR PURPOSE OF SECTION 271(1)(C) OF THE A CT. IN VIEW OF ABOVE DISCUSSION AND CONSIDERING THE FACT THAT THE ASSESS EE HAD COME OUT TO SURRENDER LTCG OF RS. 19,39,327/- DURING ASSESSMENT PROCEEDINGS ONLY AFTER ITS DETECTION BY THE ASSESSING OFFICER, IT CA NNOT BE SAID TO BE VOLUNTARY SURRENDER. IN VIEW OF THE ABOVE DISCUSSION, IT IS C LEAR THAT EXPLANATION 1 TO SECTION 271(1)(C) IS ATTRACTED IN THIS CASE AND THE APPELLANT IS LIABLE FOR PENALTY U/S 271(1)(C) SPECIALLY SINCE SHE HAS FAILE D TO SUBSTANTIATE HER CLAIM WITH REGARD TO ABOVE LTCG OF RS. 19,39,327/-. 6. WE HAVE HEARD RIVAL SUBMISSIONS. CASE FILE PERU SED. LEARNED COUNSEL REPRESENTING ASSESSEE REITERATES HIS STAND ADOPTED BEFORE THE LOWER AUTHORITIES THAT IT WAS A BONAFIDE ERROR SINCE THE LAND IN QUES TION WAS BOTH AGRICULTURAL AND NON AGRICULTURAL AND IMPUGNED SALE CONSIDERATIO N HAD NOT BEEN RECEIVED IN THE RELEVANT PREVIOUS YEAR. HE THEN QUOTES HON BLE APEX COURTS DECISION IN PRICE WATERHOUSE COOPERS VS. CIT IN CIVIL APPEA L NO. 6924/2012 TO TERM THE ASSESSEES ABOVE ACT AND CONDUCT AS A CASE OF S ILLY MISTAKE LIABLE TO BE CONDONED. LEARNED DEPARTMENTAL REPRESENTATIVE STRO NGLY SUPPORTS THE IMPUGNED PENALTY. WE PROCEED TO EXAMINE FACTS OF T HE CASE IN LIGHT OF ABOVE ARGUMENTS. THERE IS NO DISPUTE THAT ASSESSEES LAN D IN QUESTION SOLD WAS BOTH AGRICULTURAL AND NON AGRICULTURAL WHEREAS HE HAD CO NVERTED THE SAME IN LATTER CATEGORY. THERE IS FURTHER NO QUARREL THAT THE ASS ESSEE HAD CLEARLY DEMARCATED THE NECESSARY DIMENSIONS OF THE LAND SOLD IN THE TW O CATEGORIES. AND ALSO THAT HE THEREAFTER DID NOT DISCLOSE THE NON AGRICUL TURAL LANDS CONSIDERATION FOR THE PURPOSE OF COMPUTING CAPITAL GAINS IN ORIGINAL RETURN OF INCOME. THE SAME POSITION CONTINUES EVEN AFTER ASSESSING OFFICE RS SPECIFIC QUERY REGARDING OMISSION OF TAXABLE INCOME IN NOTICE DATE D 08.10.2013 (SUPRA). THE ASSESSEE RATHER WENT STEP FURTHER IN CLAIMING A LL OF HIS LAND MEASURING 11534 SQ.MTR. TO BE AGRICULTURAL NOT FORMING A CAPI TAL ASSET IN SPITE OF THE FACT OF HAVING EXECUTED SALE DEED SPECIFYING THE SAME AS NON AGRICULTURAL. THERE ITA NO. 716/AHD/2016 (NARENDRAKUMAR M PATEL VS. ITO ) A.Y. 2011-12 - 7 - IS FURTHER NO EVIDENCE THAT HE DECLARED THE CAPITAL GAINS IN QUESTION IN THE YEAR OF RECEIVING SALE CONSIDERATION; IF ANY. IT THEREF ORE EMERGES THAT ASSESSEES ABOVE ATTEMPTS WERE NEITHER BONAFIDE MISTAKES NOR S ILLY ONES SO AS TO BE CONDONED. WE THUS CONCLUDE THAT THE LEARNED CIT(A) HAS RIGHTLY CONFIRMED THE IMPUGNED PENALTY IN ABOVE NARRATED FACTS OF THE CASE. 7. THIS ASSESSEES APPEAL IS DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 27 TH DAY OF APRIL, 2017.] SD/- SD/- ( PRADIP KUMAR KEDIA ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD: DATED 27/04/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0