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TMI Blog2014 (6) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the above suggestion of the learned CIT-DR but he pointed out that in the case of the assessee, the Assessing Officer as well as CIT(A) has followed/referred to the order of Escorts Limited and, therefore, before deciding the quantum appeal in the case of the assessee, the appeal in the case of Escorts Limited will have to be decided. In the case of Escorts Limited, apart from assessee's appeal, there is a cross-appeal by the Revenue and there are several grounds in both the appeals, therefore, it will take a few days' time if Escorts Limited appeals are heard. Today, in this Bench, one of the Members, viz. Judicial Member Shri I.C. Sudhir is required to sit in two Benches, one in the present bench i.e. 'B' Bench and also in 'D' Bench. Therefore, it may not be practicable to take up very time consuming appeals. Accordingly, we asked both the parties whether the penalty appeal which is the stay granted matter can be disposed of independently to the quantum appeal. 5. It is submitted by the learned counsel that this penalty appeal can certainly be decided independently because, in this case, penalty has been levied on the claim of the assessee that the capital gain offered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause first of all, income itself is offered by the assessee and secondly, all material facts were duly disclosed by the assessee and none of the facts disclosed by the assessee was found to be incorrect or false. In support of this contention, learned counsel for the assessee relied upon the following decisions:- (i) CIT Vs. Reliance Petroproducts Pvt.Ltd. - [2010] 322 ITR 158 (SC). (ii) Price Waterhouse Coopers Pvt.Ltd. Vs. CIT and Another - [2012] 348 ITR 306 (SC). (iii) CIT Vs. DCM Ltd. - [2013] 359 ITR 101 (Delhi). 7. Learned DR, on the other hand, relied upon the order of the Assessing Officer as well as learned CIT(A). She stated that learned CIT(A) has considered each and every argument of the assessee and has rightly arrived at the conclusion that levy of penalty under Section 271(1)(c) by the Assessing Officer was justified. She submitted that in the subsequent year, Shri Anil Nanda has withdrawn his petition from the High Court and, therefore, ultimately, the sale transaction has materialized. The assessee has not offered the income from capital gains in any of the subsequent years. Thus, it is evident that ultimately, there was no effect of the dispute on the sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returns explaining how the LTCG was not liable for taxation. The note is being reproduced below:- "During the previous year ending 31.03.06, AAA Portfolios P.Ltd. (the Company) had entered into an agreement dated 25.9.05 for the sale of its shareholding in the Escorts Heart Institute and Research Centre Ltd. (hereinafter 'EHIRCL') to one M/s Fortis Healthcare Ltd. for a consideration of Rs.324951257/-. However, the very formation of EHIRCL has been challenged in the Delhi High Court in Suit No.1372/2005 (titled Anil Nanda v. Escorts Ltd. & Ors.)., wherein the plaintiff Anil Nanda has sought re-conversion of EHIRCL into the erstwhile EHIRC - Delhi Society. Having regard to the contentions of the plaintiff in Suit No.1372/2005, the Delhi High Court has passed a status quo order dated 30.9.05, in respect of the aforesaid sale transaction, which continues till today. The Co. has been legally advised that no capital gains accrue to the Co. till the matter is finally settled by the Court. In view of the matter still being sub-judice and the status quo order of the Court still in operation and on the basis of the legal advice obtained by the Co., the company has not considered the capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars." 11. Similarly, in the case of DCM Ltd. (supra), Hon'ble Jurisdictional High Court held as under:- "That the claim was put forward on the basis that the loan granted to the subsidiary was for a specific purpose and for the benefit of the holding company. The loan in fact was granted and had been also written off. There was no concealment or furnishing of inaccurate facts. The legal position put forward by the assessee that the loan unpaid and written off should be either treated as business loss or alternatively as capital loss was rejected. The full facts were before the Assessing Officer at the time of assessment when this claim was made. The fact that scrutiny assessment was pending was a relevant and important circumstance to show the bona fides of the assessee as it was aware that the claim would be examined and would not go unnoticed. Secondly, the claim was rejected in view of the legal position, which was against the assessee and not because of the statement of incorrect or wrong facts. Law does not bar or prohibit an assessee for making a claim, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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