Principal Commissioner Of Wealth Tax-I, New Central Revenue Building, Statue Circle, Jaipur (Raj v. Narayana Heights & Towers, S

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 203 / 2017 Principal Commissioner of Wealth Tax-I, New Central Revenue Building, Statue Circle, Jaipur (Raj.) ----Appellant Versus Narayana Heights & Towers, S-220, Time Square, Central Spine, Vidhyadhar Nagar, Jaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. Aditya Vijay for Mr. Anuroop SinghiFor Respondent(s) : _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGH Order 17/08/2017 By way of this appeal, the appellant has assailed thejudgment and order of the Tribunal whereby the Tribunal hasallowed the appeal preferred by the assessee under Section 271(1)(c) of Income Tax Act, 1961. Counsel for the appellant has framed the following questions of law: “i) Whether the Tribunal was justified in deletingthe penalty levied by Assessing Officer andconfirmed by CIT(A) u/s 271(a)(c) of Rs.34,05,436/- levied in respect of addition of Rs.1,10,20,831/-? ii) Whether the Tribunal was justidied indeleting the penalty of Rs. 34,05,436/- withoutconsidering the fact that no appeal was filedagainst the quantum order passed by Assessing Officer? iii) Whether on the facts and circumstances ofthe case, the finding of the Tribunal is perverse,contrary to the record and untenable in the eyeof law?” In view of the observations made by the Tribunal in para 4.2 and 4.4 which reads as under:- “4.2. He submitted that in respect of addition ofRs. 61,09,482/-, the assessee transfer its part ofagriculture land (0.2300 hectares) to one of itspartners shri Sitaram on redemption as part ofcapital redemption while sale deed dated5/11/2011 for Rs. 1,81,95,000/- the cost of theland against the sale was Rs. 2,04,19,388/- thestamped authority adopted value for the purposeof stamp duty of Rs. 1,98,42,556/-. However, theassessing officer ignored the actual saleconsideration at Rs. 1,81,95,000/- as well as thedeemed consideration under Section 50C of theAct of Rs. 1,98,42,556/- but took the saleconsideration of Rs. 2,65,28,870/- treating thesame as fair market value on the basis ofcompensation paid by NHAI. He submitted thathad the actual sale consideration and deemconsideration under section 54C was taken thenthere have been no profit but loss. He submittedthat this addition is patently wrong and it can notbe considered as concealed income for whichinaccurate particulars have been filed. Hesubmitted that even Section 45(4) of the Act cannot be applied. He further submitted that theassessee was of the view that compulsoryacquisition by NHAI would not attract the capitalgain further in respect of addition of Rs.49,11,349/- the assessee was under bonafidebelief that the income was exempt from the taxon account of compulsory acquisition undersection 10(37) of the Act. The Ld. Counsel reliedon the decision of the coordinate bench renderedin the case of GTO Vs. Rajmata ShantiDevi(2001) 76 ITR 299 (Ahd) and also placereliance on the judgment of the Hon’ble SupremeCourt rendered in the case of Price WaterhouseCoopers Pvt. Ltd. Vs. CIT and another 348 ITR306 (SC). He further submitted that theassessment order under section 143(3) of theAct, was passed on the basis of informationsupplied by the assessee. So, it is not the casewhere the assessee has deliberately concealed the material particulars. In support of this Ld.Counsel for the assessee drew our attention toprofit and loss account and the details on fixedassets as furnished during the course ofassessment proceedings. the material particulars. In support of this Ld.Counsel for the assessee drew our attention toprofit and loss account and the details on fixedassets as furnished during the course ofassessment proceedings. 4.4. We have heard the rival contention andperused the material available on record, we findmerit into the contention of the ld. Counsel forthe assessee that out of two additions oneaddition of Rs. 61,09,482/- was wrongly madeand the assessee has furnished all material factsbefore the Assessing Officer under these factsthe assessing officer ought not to have levied thepenalty. We find force into the contention of Ld.Counsel for the assessee that in the penaltyproceeding the AO should consider the facts inright perspective. He should come to a specificfinding with regard to concealment of income. Inthe considered view, the explanation as given bythe assessee ought to have been considered bythe AO, The AO should not to have passedpenalty order in a mechanical way merely on theassumption that the assessee has accepted thecharge of concealment of income. Ground no. 2of appeal is allowed.” We see no reason to interfere with the matter. No substantial question of law arises. Hence, the appeal stands dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. A.Sharma/14