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TMI Blog2013 (8) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 2004-2005 and 2005-2006. The issue involved in all these appeals is common i.e. regarding penalty imposed by the AO under section 271(1)(c) of the Act in respect of long term capital gain not declared by the assessee, in the original return of income, but which was declared by the assessee subsequently along with an application under Section 273A of the Act, before the Commissioner of Income-tax, Surat on 7.1.2008, for waiver of penalty to be levied under section 271(1)(c) of the Act. With this application, both the assessees had filed a revised computation of total income, and the same was filed due to land transaction carried out by these two assessee during these years, on which, long term capital gain was earned on sale of ancestral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also pointed out that in that case, the Tribunal has followed another Tribunal decision rendered in the case of Shri Balvantrai S. Contractor, who was brother of the father of present two assessees and he was a co-owner of the same land having 73% right of ownership. It is submitted that since penalty under similar facts was deleted by the Tribunal in the case of late Harshadrai Contractor and his brother Shri Balvantrai S. Contractor, penalty should be deleted in the present cases also. As against this, the learned DR supported the penalty order passed by the AO in respect of these two assessees. 3. We have considered rival submissions and perused the material on record and gone through the orders of the authorities below and the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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) is made applicable to the facts of this case, the explanation offered by the assessee, would go to show that the assessee discharged the burden placed upon it. Thus, in as much as on merits, the assessee had already declared the correct income before detection by the department by filing an application u/s273A of the act. The assessee moved a petition u/s 273A of the Act before CIT-Surat for all these four assessment years vide application dated 07-01-2008 declaring L TCG arising on the land transactions entered during the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompleting 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 fraud or any gross or willful neglect on his part and accordingly, we delete the penalty levied by the Assessing Officer and confirmed by CIT(A)." In view of the above, the penalty imposed by the A.O. and sustained by the CIT(A) in the case of assessee, who is co- owner of the same land, which was subject matter in the case of Shri Balvantrai S. Contractor, is hereby deleted." 4. From the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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