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TMI Blog2014 (7) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... hd/2012 - - - Dated:- 11-7-2014 - Anil Chaturvedi And Kul Bharat, JJ. For the Appellants : Shri S N Soparkar With Ms Urvashi Shodhan, AR For the Respondent : Shri A Tirkey, Sr DR ORDER :- PER : Kul Bharat This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-Gandhinagar ( CIT(A) in short) dated 27/08/2012 pertaining to Assessment Year (AY) 2008-09. The Assessee has raised the following grounds of appeal:- I. On Legality: 1. The Ld.CIT(A) has erred both in Law and in fact in confirming the applicability of Sec.271(1)(c) of the Act on the facts of the case and thereby confirming order of ITO levying penalty of ₹ 12,32,407/-. 2. Your Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to levying penalty as held by various authorities and therefore also kindly levied u/s.271(1)(c) be cancelled. It is therefore submitted that reliefs claimed above be allowed and the order of the Assessing Officer be modified accordingly. Your Appellant reserves right to add, alter or amend any or all Grounds of Appeal. 2. The facts as narrated in the order of the ld.CIT(A) are as under:- 3. In this case the assessment was finalized u/s.143(3)on 23/11/2010on a total income of ₹ 1,13,58,240/-. During the course of assessment proceedings, the AO noticed that the assessee claimed Long Term Capital Gain of ₹ 28487270/- as exempt u/s.10 (38) of the IT Act. On further verification of details of LTCG, the AO f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosed the material information by filing the revised computation of capital gain. The assessee paid all taxes. He submitted that this is not the case where the assessee has suppressed and concealed any information. In fact, all material were available with the AO. He has submitted that the assessee has also taken an objection with regard to the initiation of penalty proceedings. In support of this contention, he drew our attention towards para-6 of the assessment order. He placed reliance on the judgement of Hon ble Gujarat High Court rendered in the case of CIT vs. Whiteford India Ltd. reported at (2013) 38 taxmann.com 15 (Guj.). 4. We have heard the rival submissions, perused the material available on record and gone through the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee had concealed its income and/or that it had furnished inaccurate particulars of such income'. Now, the language of 'and/or' may be proper in issuing a notice as to penalty order or framing of charge in a criminal case or a quasi-criminal case, but it was incumbent upon the Inspecting Assistant Commissioner to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by the assessee. No such clear-cut finding was reached by the Inspecting Assistant Commissioner and, on that ground alone, the order of penalty passed by the Inspecting Assistant Commissioner was liable to be struck down. 4.1 Similar view h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2. In view of the ratio laid down by the Hon ble Gujarat High Court in the case of CIT vs. Whiteford India Ltd.(supra) and the coupled with fact that the assessee has offered gain arising out of bonus shares as capital gain and paid tax on the same, we find force in the contention of the ld.Sr.counsel for the assessee that had the assessee waited for more time to transfer the bonus shares there would have been a long term capital gain which was exempt at that point of time. Therefore, there was no reason for the assessee to evade tax. Under these facts, we are of the opinion that the authorities below were not justified in imposing the penalty and confirming the same. Moreover, the penalty notice was issued by the AO is also defective in v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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