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TMI Blog2015 (5) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is now being raised without pointing out such a defect in the Assessing Officer's order before the Tribunal. Apart therefrom, we do not find how, when the Assessing officer's order was challenged before the Commissioner and the Assessee succeeded before the Commissioner, the penalty was set aside, that from an Appeal by the Revenue against the Tribunal's order can such a ground be raised. Even if such a plea can be raised now, we do not find that there is any prejudice caused, as all the fact finding authorities have gone elaborately through the contentions raised by the Assessee. There is no miscarriage of justice. No substantial question of law - Decided against assessee. - Income Tax Appeal No. 1275 of 2013, Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 of the Income Tax Act, 1961, the chargeable capital gain was computed at ₹ 82,57,073/-. 4. A letter was addressed during the course of assessment proceedings on 28th December, 2008, in which, the Appellant appears to have drawn attention to the computation of capital gain and stated that the capital gain had been computed on inadvertent assumption that the said property had been acquired prior to 1st April, 1981, while it had in fact been acquired on 24th August, 1981. The reason for this alleged inadvertence is that there had earlier been prolonged negotiations before the issuance of the letter of allotment. The Appellant stated that the basic facts were not available and there was haste in filing the return and that is why the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d query from the Revenue and that is how all these facts were referred by the Appellant. Therefore, the basis in the Commissioner's finding that it was a suo moto act of the Appellant is erroneous. That does not exist once the disclosure came on a query from the Revenue. 8. It is this argument which was canvassed before us and through out. We have noted this argument in our order dated 13th April, 2015. That order reads as under: 1. These Appeals, according to Mr. Gandhi, appearing for the assessee in support, raises a very substantial question of law. According to him, the penalty under Section 271(1)(c) of the Income Tax Act, 1961 has been sustained partially and erroneously by the Income Tax Appellate Tribunal. The penalty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f perversity on the part of the Tribunal can be raised. However, even when the order of the Tribunal is termed as perverse, it must be established and in the legal sense that the Tribunal omitted from consideration relevant and germane piece of evidence or that the Tribunal based its conclusion on irrelevant materials and having absolutely no nexus or connection with the issue raised before it. The argument is that the Tribunal's reasoning is fallacious and defective fundamentally. It is the Assessee who volunteered and disclosed the factual position and by a communication referred to above. It was not any query but a suo moto act. 10. Once the Tribunal has found the position to be otherwise and when no material is produced by Mr. Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for reopening were communicated and the Assessee realised the mistake on reading the reasons. It promptly informed the Assessing Officer by a letter that there was no willful suppression of facts by the Assessee but that a genuine mistake has been committed, and which later also appears to have been overlooked by the Assessing Officer. That is how the penalty proceedings were interfered with by the Hon'ble Supreme Court. This entire finding and in favour of the Assessee before the Hon'ble Supreme Court came in the backdrop of such peculiar and unique facts. We do not see how this Judgment can assist the Assessee in this case and for questioning the conclusion reached by the Tribunal. The Tribunal has reached this conclusion in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal. Apart therefrom, we do not find how, when the Assessing officer's order was challenged before the Commissioner and the Assessee succeeded before the Commissioner, the penalty was set aside, that from an Appeal by the Revenue against the Tribunal's order can such a ground be raised. Even if such a plea can be raised now, we do not find that there is any prejudice caused, as all the fact finding authorities have gone elaborately through the contentions raised by the Assessee. There is no miscarriage of justice. 14. As a result of the above discussion, both the Appeals do not raise any substantial question of law. The findings of fact are not perverse or vitiated by any error of law apparent on the face of the record. The Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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