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TMI Blog2012 (12) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... sposed of by this consolidated order. 3. Rival contentions have been heard and record perused. The facts, in brief, are that the assessee had shown income on account of long term capital gain out of sale of shares of M/s Robinson Limited. There was survey u/s 133A in case of DSP Shares & Securities wherein statement of Shri Shigal Shah was recorded. An inquiry was also strated against the assessee in which various details and documents were called for from the assessee. As the broker through whom the shares were purchased did not cooperate, the assessee was unable to furnish the required documents asked by the department. The assessee filed the revised return in which long term capital gain was offered as normal income of the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer insofar as the revised return was filed much prior to issue of notice u/s 148 of the Act. He further submitted that the assessment was framed/s 148/143(3) accepting the revised return without making any further addition. The ld. Counsel for the assessee further contended that it is a settled principle that penalty can be levied only for the reason for which it is initiated and when the reasons on which the penalty is initiated are incorrect, levy of penalty cannot stand. He further submitted that the penalty actually levied was for a different reason and not for the reason for which it was initiated. Reliance was placed on the decision of the Gujarat High Court in the case of A.M. Shah & Company; 238 ITR 415 wherein it was held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Paul Mathews & Sons; 263 ITR 101 wherein it was held as under :- "Section 133A enables the income tax authority only to record any statement of any person which may be useful but does not authroise for taking any sworn in statement.... ......whatever statement recorded under section 133A is not given any evidentiary value obviously for the reason that the officer is authorised to administer oath and to take any sworn in statement which alone has the evidentiary value as contemplated in the law. (Para 11)" Reliance was also placed on the decision of Hon'ble Madras High Court in the case of CIT v. S. Khader Khan Son (300 ITR 157 wherein it was held - "Section 133A does not empower any ITO to examine any person on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 215 wherein it was held that no penalty is leviable in respect of disclosure of additional income after survey. Reliance was also placed on the decision of the Hon'ble Madras High Court in the case of M. Pachamuthu; 295 ITR 502 wherein it was held that mere addition agreed to by the assessee during the course of survey would not empower the Assessing Officer to levy penalty u/s 271(1)(c) of the Act. 7. On the other hand, the learned Senior DR supported the orders of the authorities below for imposing the penalty on the plea that in the original return, the assessee has offered the capital gains as exempt which was found to be taxable after inquiry. Reliance was placed on the decisions reported as 163 ITR 440 and 335 ITR 23. 8. We have con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been dealt with by the Punjab & Haryana High Court in the case of Rajiv Garg; 313 ITR 256 wherein the assessee had disclosed long-term capital gains on sale of shares amounting to about Rs. 30 lakhs. Meanwhile, the Investigation Wing of the Department found on enquiry that the broker had accommodated the assessee with bogus entries relating to purchases and sales of shares, so that there could have been no long term capital gains assessable at the lower rate of 20 per cent. Notice under section 148 was issued and the assessee filed a return showing the entire amount of Rs. 30 lakhs amounting to receipts as business income in the revised return. The question arose whether penalty exigible in respect of income offered in the original return a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "3. We have considered the rival submissions of ld. representatives of both sides and perused the material available on record. Under the aforementioned facts, the question arises as to whether the penalty u/s 271(1)(c) could be imposed when the assessee revised its return before finalization of assessment. The obvious reply is 'No' because the revised return was regularized by the revenue and at the same time there is no loss to the revenue. The decision of the Hon'ble Apex Court in CIT v. Sureshchand Mittal; 251 ITR 9 and the ratio laid down by the Hon'ble MP High Court in CIT v. Shyamlal and Soni (276 ITR 156) support our view. At the same time, initial burden lies on the revenue to establish that the assessee concealed the income or in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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