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TMI Blog2012 (7) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... examined and assessee filed revised computation only after the addition was made in the assessment order - explanation cannot be considered as bonafide nor the issue is debatable as the assessee did not dispute the valuation report thus Penalty has being rightly levied - decided against assessee. - ITA No. : 5070/Mum/2011 - - - Dated:- 30-5-2012 - SHRI D. MANMOHAN, SHRI RAJENDRA SINGH, JJ. Appellant by : Shri R.V. Shah alongwith, Shri Hiren Chandel Respondent by : Shri P.K.B. Menon O R D E R PER RAJENDRA SINGH, AM: This appeal of the assessee is directed against the order dated 22.3.2011 of CIT(A) for assessment year 2006-07. The only dispute raised in this appeal is regarding levy of penalty for concealment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, did not accept the contentions raised. It was observed by him that the assessee was aware of the provisions of section 50C but did not declare income accordingly. The assessee also did not give full facts relating to computation of capital gain. The assessee revised computation of income only after being pointed out. The AO, therefore, concluded that it was a fit case for levy of penalty under section 271(1)(c) of the Act. Accordingly he levied penalty of Rs.3,50,000/- @ 100% of tax sought to be evaded. In appeal, CIT(A) agreed with the AO that the assessee had concealed particulars of income and it was not a case of bonafide mistake. CIT(A) accordingly confirmed the penalty aggrieved by which, the assessee is in appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p duty value. The assessee had declared lower income on the basis of actual consideration which was against the provisions of law. The assessee did not even revise the return of income and filed revised computation vide letter dated 26.11.2008 only after the AO had detected the concealment of income and after the assessment order was passed. The assessee had not disputed the stamp duty valuation. The explanation of the assessee that it was a mistake could not be considered as bonafide. The ld. DR placed reliance on the judgment of Hon'ble High Court of Delhi in the case of CIT vs. Zoom Communication P. Ltd. (327 ITR 510) and another judgment dated 14.1.2011 in case of CIT vs. Splendour Construction in ITA No.1977/2010 in support of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made by AO only vide letter 26.11.2008 after the assessment order had already been passed on 20.11.2008. 4.1 The assessee has submitted that it had not under stated the actual consideration received or deliberately declared any lower capital gain and therefore, penalty should not be levied. The explanation of the assessee cannot be accepted. Willful concealment or mensrea is no longer a requisite condition for levy of penalty under section 271(1)(c) in view of the judgment of Hon'ble Supreme Court in the case of Dharmendra Textile Processors (306 ITR 277) in which it has been held that penalty under section 271(1)(c) is only a Civil Liability to compensate for loss of revenue. A case for penalty is required to be evaluated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istake is accepted, then one can easily make wrong claims in the returns and can get away with it taking advantage of the summary scheme as per which 99% of returns are required to be accepted without any scrutiny and in case of being detected, can explain away as a bonafide mistake. In our view, on the facts of the case, explanation cannot be considered as bonafide nor the issue is debatable as the assessee did not dispute the valuation report. Therefore, in our view, the case of the assessee is covered by the Explanation-1 to Section 271(1)(c) in terms of which the assessee is deemed to have concealed particulars of income and penalty is leviable. The case of the assessee is also supported by the judgment of Hon'ble High Court of Delhi in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CIT(A) vs. Reliance Petro Products P. Ltd. (322 ITR 158). In case of Reliance Petro Products P. Ltd. (supra), only the limited issue of furnishing of inaccurate particulars of income had been raised and deemed concealment of particulars of income as per Explanation-1 was not there before Hon'ble Supreme Court. Thus the Tribunal had not considered the provisions of Explanation-1 to section 271(1)(c) as per which if the explanation of the assessee with respect to any addition is not found bonafide, it amounts to deemed concealment of particulars of income. In the present case, as we have held earlier penalty is leviable in terms of provisions of Explanation-1 to section 271(1)(c). The said case is, therefore, not applicable. 4.4 In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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