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TMI Blog2014 (10) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... cious so as to warrant levy of penalty – thus, the levy of penalty is not justified – Decided in favour of assessee. - I.T.A. No. 3212/Del/2014 - - - Dated:- 5-9-2014 - Shri G. D. Agrawal And Shri H. S. Sidhu,JJ. For the Petitioner : Sh. GS Agarwal (Chairman) and Sh. Deepak Goel, CA For the Respondent : Ms. Sudha Kumari, CIT(DR) ORDER Per H. S. Sidhu, JM This appeal by the Assessee is directed against the order of the Ld. Commissioner of Income Tax (Appeals)-VI, New Delhi dated 25.4.2014 pertaining to assessment year 2007-08. 2. The assessee has raised so many grounds challenging the order of the Ld. Commissioner of Income Tax (A) dated 25.4.2014 wherein he has confirmed the penalty of ₹ 8,05,000/- levied u/s. 271(1)(c) of the I.T. Act imposed by the AO. 3. In this case the assessment order u/s. 143(3) of the I.T. Act, 1961 was passed for the asstt. year 2007-08 on 24.12.2009. The return filed by the assessee was accepted as correct and the assessment order was passed on the returned income. The AO, however, disallowed carry forward loss of ₹ 23,09,722/- u/s. 79 of the Act on the ground that there was a change in majority shareholding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007-08. He also submitted that the finding of the CIT(A) that the AO afforded sufficient opportunity to the assessee is thus perverse and without any basis whatsoever. We find that Ld. Counsel of the assessee has stated that the Ld. CIT(A) has given a wrong and perverse finding that the appellant had concealed income and furnished inaccurate record of income in respect of the addition of ₹ 23,90,722/- made to the returned income of the assessee. It was also submitted by the assessee that the Ld. CIT(A) failed to notice that the present case was not a case of concealment of particulars of income nor a case of furnishing inaccurate particulars of income as the return filed by the appellant was accepted by AO. It was also not a case of addition of ₹ 23,90,722/- to the returned income of the appellant as no addition to the returned income was made by the AO. It was simply a case of carry forward of Long Term Capital Loss, which claim was ultimately given up by the assessee. It was also the contention of the assessee s case is that no prejudice whatsoever has been caused to the revenue by disallowance of carry forward loss of ₹ 23,90,722/- in as much as the said loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n account of any concealment of any particular of income. In the case of Mak Data P Ltd. vs. CIT-II, (Civil Appeal No. 9772 of 2013 dated 30.10.2013) the Hon ble Supreme Court while considering the Explanation to Section 271(1) held as under:- The question would be whether the assessee had offered an explanation to Section 271(1) raises a presumption of concealment, when a difference is noticed by the Assessing Officer between the reported and assessed income. The burden is than on the assessee to show otherwise, by cogent and reliable evidence and when the initial onus placed by the explanation, has been discharged by the assessee, the onus shifts on the revenue to show that amount in question is constituted their income and not otherwise. Factually we find that onus cast upon the assessee has been discharged by giving a cogent and reliable explanation. Therefore if the department did not agree with the explanation, the onus was on the department to prove that there was concealment of particulars of Income or furnishing of inaccurate particulars of income. In the instant case such onus was shifted on the department has not been discharged. 6.3 Ld. Counsel of the assesssee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highest it can be said that the claim of the assessee was not sustainable in law but there was no furnishing of inaccurate particulars or concealment of income on the part of the respondent-assessee. Thus, the from return filed by the respondent-assessee. penalty was set aside, relying upon the Apex Court judgement (Supra) in the matter of CIT vs. Reliance Petroproducts Pvt. Ltd. In the Rubber Udhyog Vikas Pvt. Ltd. Case assessee claimed set off of brought forward business loss against the income under the head capital gains. The AO declined the claim of set off as not permissible under s. 71/72 of the IT Act. The AO also levied penalty under s. 271 (1 )(c). Against the order of AO, the assessee filed appeal before the CIT(A) who deleted the penalty. The order of CIT(A) for cancelling the penalty was upheld by the Tribunal. The Revenue carried the matter to the High Court which remanded the case back to the Tribunal for deciding the imposition of penalty on merits. The Tribunal held that assessee had disclosed all the particulars relating to his income and claim of set off of business loss against the capital gain, There was a bona fide disclosure of all the particulars and mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion, therefore, the loss related to the previous year was disallowed to be carried forward under the provision of Section 79. Thus, the disallowance of carry forward of the long term capital loss was on technical ground and not on account of any concealment of any particular of income and has rightly referred the case of Mak Data P Ltd. vs. CIT-II, (Civil Appeal No. 9772 of 2013 dated 30.10.2013) wherin the Hon ble Supreme Court while considering the Explanation to Section 271(1) held as under:- The question would be whether the assessee had offered an explanation to Section 271(1) raises a presumption of concealment, when a difference is noticed by the Assessing Officer between the reported and assessed income. The burden is than on the assessee to show otherwise, by cogent and reliable evidence and when the initial onus placed by the explanation, has been discharged by the assessee, the onus shifts on the revenue to show that amount in question is constituted their income and not otherwise. Factually we find that onus cast upon the assessee has been discharged by giving a cogent and reliable explanation. Therefore if the department did not agree with the explanation, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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