TMI Blog2012 (7) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... dependent - Revenue’s appeal is dismissed - ITA No.469/Ahd/2010 - - - Dated:- 7-6-2012 - Shri, A.K.Garodia, And Shri Kul Bharat, JJ. Appellant : Shri B.L.Yadav, SR-DR Respondent : Shri Mukund Bakshi, AR O R D E R PER Kul Bharat, Judicial Member:- This appeal of Revenue is directed against the order of Ld. Commissioner of Income-tax (Appeals)-I, Baroda dated 31-10-2009 for the assessment year 2002-03. The Revenue has raised the following ground of appeal:- 1. On the facts and in the circumstances of the case and in law, the ld. CIT(Appeals) erred in deleting the penalty of Rs.21.00 lacs levied u/s. 271(1)(c) of the Act on the disallowance of adjustment/set off of short term capital loss incurred in sham tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon him to submit his written explanation in respect of levy of penalty u/s. 271(1)(c) of the Act of in respect of the aforesaid issue. AO after considering the submission of the assessee and also the case laws as relied by him levied penalty of Rs.21 lakh. 3. The assessee feeling aggrieved by this order filed appeal before Ld. CIT(A) who after considering the submissions and the judicial pronouncements as well as provisions of law deleted penalty as levied by Assessing Officer. 4. Now the Revenue is in appeal before us against the order of Ld. CIT(A) whereby the penalty was deducted to be deleted. 5. Ld. SR-DR Shri B.L. Yadav for the Revenue submitted that order of Ld. CIT(A) is erroneous as the Assessing Officer has rightly came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Supreme Court in the case of Dharmendra Textiles Processors (supra) has generated some controversy. The assessing authorities have interpreted the decision to mean that there is now no place for mens rea in penalty proceedings, and that every addition or disallowance would have the consequence of mandatory imposition of penalty. However, in Rajasthan Spinning and Weaving Mills, 23 DTR 158, the Supreme Court has revisited its decision in the case of Dharmendra Textiles Processors and clarified that it merely reiterates the earlier existing position, i.e., penalty can be levied only in a case where there has been either concealment of income or furnishing of inaccurate particulars of income. Whether there has been concealment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be justifiable. Moreover, I find that the basic assumption that the transactions were carried out by the broker and not by the assessee is not borne out by facts, since periodic settlements of the outstanding amounts were made and all the dues have been reimbursed by the as subsequently. 7.4 Penalty proceedings are distinct and separate from assessment proceedings. Where the assessee has not concealed any fact material to the computation of its income and has offered a satisfactory explanation with regard to the facts doubted by the AO, and such explanation has not been found to be false or unsubstantiated, the onus cast upon the assessee would stand discharged. Accordingly, I am of the opinion, on the above facts, that the penalty in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5027 @ 100.24 17.9.01 Soft Solution 3711 @ 102.52 25.9.01 3521 @ 91.74 26.9.01 3102 @ 90.73 8.10.01 The same pattern is in respect of other scripts between the appellant and Thakkar Share Brokers Pvt. Ltd. is also seen. There was regularity and continuity in purchase of such shares but the time and type of script appears to be so decided that it would result only in loss to the appellant. Admittedly, all the transactions were duly disclosed by the assessee had carried out substantial transactions with Thakkar Share Brokers Pvt. Ltd. as noted by Hon ble ITAT in appellate quantum proceedings and addition made on account of transaction through Thakka ..... X X X X Extracts X X X X X X X X Extracts X X X X
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