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TMI Blog2013 (7) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... aring the total income at Rs.86,299/- which was accepted u/s. 143(1) of the Act. Subsequently, the assessee filed an application u/s. 273A of the Act before the CIT-I, Surat on 07.01.2008 requesting for the waiver of penalty leviable u/s. 271(1)(C) of the Act. Along with this application, the assessee filed a revised computation of income wherein he disclosed Long Term Capital Gain earned on purchase and sale of land during the financial years 2001-02 to 2005-06. The ratio of ownership of the assessee and his brother on this land was 73% of brother and 27% of the assessee. The Long Term Capital Gain was not shown in the regular returns of income filed for the A.Ys. 02-03 to 06-07. On the basis of this information, the Assessing Officer reop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f lower authorities. 6. After hearing both the parities and perusing the record, we find that in the case of assessee's brother, Shri Balvantrai S. Contractor, who was coowner of this land having 73% right of ownership, on identical facts, the penalty imposed by the A.O. and sustained by the ld. CIT(A), has been deleted by the Hon'ble ITAT vide its order dated 30.11.2010 in ITA No. 2128- 2131/Ahd/2010 for A.Ys. 2002-03 to 2005-06 by observing as under: "16. We further are of the view that even Explanation to s. 271(1)(c) is not applicable to the facts of this case. Even if Explanation to s. 271(1)(c) is made applicable to the facts of this case, the explanation offered by the assessee, would go to show that the assessee discharged the bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re CIT, Surat and determination made by the Assessing Officer for the respective assessment years. The Explanation was acting as a rule of evidence. It is always open to the assessee to prove that the failure to return the correct income did not arise from any fraud or any gross or willful neglect on this part. In the present case, the Assessing Officer did not detect any concealment while completing the assessment rather the assessee himself the land transactions revealing LTCG arising out of the said transactions. The Department came to know the income from the land transactions only after it was disclosed by the assessee. Therefore, on facts, the assessee established that the failure to return the correct income did not arise from any fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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