DR.SATISH CHANDRA, J. - (1.) PRESENT appeal under Section 260 -A of the Income Tax Act 1961, has been preferred against the judgment and order dated 01.10.2010 passed by the Income Tax Appellate Tribunal, Lucknow in ITA No.287/Luc/2009 for the Assessment Year 2004 -05.
(2.) ON 15.03.2012, a Coordinate Bench of this Court has admitted the instant appeal on the following substantial question of law: "Whether the Income Tax Appellate Tribunal has erred in law in failing to appreciate that the assessee had not disclosed the income from sale of property at 278/91, Moti Nagar, Lucknow as income from the capital gains in his return of income and that therefore, he is liable for penalty under section 271 (1) (c) of the I.T. Act, 1961." The brief facts of the case are that the assessee ­ Sri Shiv Kumar Jaiswal and his wife Smt. Asha Jaiswal were the owner Moti Nagar, Aish Bagh Road, Lucknow. The said property was gifted by a registered gift deed to a family friend Sri Raj Kumar Chaurasia. For the purpose of stamp duty, the property was valued for a consideration of Rs.1,74,17,340/ - on which stamp duty of Rs.17,42,000/ - was paid by Sri Raj Kumar Chaurasia. Sri Raj Kumar Chaurasia has given a return gift of Rs.75,00,000/ - to a minor son of the assessee by a registered Gift Deed.
(3.) THE A.O. has considered that it is a sale and invoked the provisions of Section 50(c) of the Income Tax Act for the purpose of computation of capital gain. Thus, the value of the stamp duty shown by the assessee was taken as a sale consideration and the A.O. computed the long term capital gains for Rs.34,41,001/ - under section 48 of the Income Tax Act and considered the sale under section 50(c) of the Act. On confrontation with the A.O., the assessee has made surrender of Rs.6,88,200/ - only to purchase peace with the department and to avoid penalty etc. As compelled by the ITO, a sum of Rs.6,88,200/ - was paid by filing revised computation, under section 271(1)(c) of the Income Tax Act, 1961. But the same was deleted by the First Appellate Authority as well as by the Tribunal vide its impugned order dated 01.10.2010. Being aggrieved, the department has filed the present appeal.;