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TMI Blog2012 (7) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... lared sale of half portion of plot as capital gain and also claimed deduction u/s 54EA. Therefore, there was complete disclosure of facts when assessee filed his return of income for that assessment year - pure case of concealment of income - against assessee. - I.T.A. No.2802/Ahd/2009 - - - Dated:- 29-6-2012 - Shri D.K. Tyagi, and Shri Anil Chaturvedi, JJ. Department by : Shri Vinod Tanwani, Sr. D.R. Assessee by : Shri Sunil Talati, A.R. ORDER PER : D.K. TYAGI, JUDICIAL MEMBER This is assessee s appeal against the order of ld. CIT(A)-XVI, Ahmedabad dated 28.08.2009 confirming the levy of penalty by the A.O. u/s 271(1)(C) of the Act. 2. Brief facts of the case are that a plot of land at Rakhial was acquired b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable as business income in the form of adventure in the nature of trade and not capital gain as claimed by the assessee. Thereafter, the A.O. initiated penalty proceedings u/s 271(1)(C) of the Act and held that the assessee has concealed the income to the extent of Rs.13,23,894/- and accordingly, minimum penalty of Rs.4,05,112/- was levied. Before Ld. CIT(A) the assessee filed written submissions which were summarized as under:- i) The appellant relied upon the judgement of Hon ble Gujarat High Court in the case of New Sarathia Engineering 282 ITR page 642 (Guj.) as the Assessing Officer at para 5 of the penalty order has mentioned that there was concealment of particulars of income or furnishing of inaccurate particulars of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in the case of CIT vs. Reliance Petroproducts (P) Ltd. reported in (2010) 322 ITR 158 (SC) is applicable to the facts of this case. Ld. counsel of the assessee further placed reliance on the decision of Gujarat High Court in the case of New Sarathia Engineering vs. CIT reported in 282 ITR page 642 (Guj.) for the proposition that the A.O. has to give clear cut finding as to whether the assessee has concealed the particulars of income or assessee has submitted inaccurate particulars of income while levying the penalty u/s 271(1)(c) of the Act. Since in this case no such clear cut finding has been given by the A.O. in his penalty order, the penalty deserves to be deleted. Lastly, ld. counsel of the assessee submitted that in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the assessment that it was admitted that there was sale of half portion of the plot during the year under appeal. Therefore, the ratio as laid down in the case of Reliance Petroproducts (supra) is not applicable to the facts of this case. Coming to the third argument of the assessee that the A.O. has not given clear cut findings as to whether penalty has been imposed for concealment of income or for filing inaccurate particulars of income ld. D.R. submitted that the A.O. has clearly given a finding in the penalty order that it is a case of concealment of income and, therefore, he has followed the law as laid down by the Gujarat High Court in the case of New Sarathia Engineering (supra). Coming to the last argument of the ld. counsel of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of ld. counsel of the assessee that since even penalty proceedings were not initiated during the assessment year 2001-02 on similar fats, therefore, penalty levied during the year under appeal should also be deleted. During the assessment year 2001-02 the assessee duly declared sale of half portion of plot as capital gain and also claimed deduction u/s 54EA. Therefore, there was complete disclosure of facts when assessee filed his return of income for that assessment year but the same is not the situation during the year under appeal as assessee had not disclosed the sale of the plot during the year under appeal and it was only on enquiry made by the A.O. during assessment proceedings after finding some credit entries in the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40/- B) Tax on Assessee Income: 416449/- C) Concealed Income: 1323890/- D) Assessed Income less Concealed Income: 177050/- E) Tax on D: 11337/- F) Tax sough to be evaded: 405112/- G) Minimum Penalty Leviable: 405112/- (100%) H) Maximum Penalty Leviable: 1215336/- (300%) I) Penalty Levied: 405112/- Therefore, I hereby levy penalty of Rs.4,05,112/- for concealment of income u/s 271(1) of the Income Tax Act. In view of the above, the action of the A.O. is not in violation of the ratio as laid down by the Hon ble jurisdictional High Court in the case of New Sarathia Engineering (supra) and the penalty has rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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