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TMI Blog2015 (9) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... gures of short term capital loss to be carried forward at ₹ 30,27,277/- in place of the earlier claimed loss of ₹ 62,09,653/-. However, he levied the penalty u/s 271(1)(c) of the Act. From the aforesaid narrated facts of the present case, it is crystal clear that the intention of the assessee was not mala fide because he himself corrected the figure, revised the computation and paid the due tax on the income of the succeeding years because the claim of carried forward of short term capital loss had affected the future tax liability. See Price Water House Coopers (P.) Ltd., [2012 (9) TMI 775 - SUPREME COURT] Thus we hold that no penalty is leviable in the facts and circumstances of the case under Section 271(1)(c) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the mistake happened because some wrong formula was entered into XL seat used for computation of short term/ long term capital gain/loss. It was further stated that when the notice u/s 143(2) was received, the assessee came to know of the mistake and filed the revised details of short term capital loss before the AO vide letter dated 24.10.2011. It was also stated that the assessee filed a revised return of income declaring thereon figure of short term capital loss at ₹ 30,27,277/- but the AO treated the revised return as non-est as it was filed beyond the time available u/s 139(5) of the Act but assessed the short term capital loss to be carried forward at the same figure as mentioned in the revised return. The assessee furnishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of capital loss. In response to this questionnaire, the appellant filed a reply before AO vide letter dated 24.10.2011 that return for subject AY has been revised on 19.10.2011 in which claim of short term capital loss has revised to ₹ 30,27,277/-. The AO held that revised return is non-est being beyond prescribed time limit u/s 139(5). However, the AO accepted the revised figure of short term capital loss in the assessment order. The appellant did not file any appeal against the assessment order. Subsequently, the AO holding that the appellant has concealed and furnished inaccurate particulars of his income, levied penalty u/s 271(1)(c) at ₹ 8,59,653, being 100% of tax sought to be evaded within the meaning of Explanation 4(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no tax liability, there could not be any intention on the part of the appellant to furnish wrong particulars of his income. The claim of carry forward of short term capital loss would have affected only future tax liabilities and the appellant has on his own revised the returns for subsequent AY and paid the taxes due. This reflects the bonafides of the appellant. 5.3 The AO has also not established how provisions contained in Explanation 1 to section 271(1)(c) are applicable in this case. The present case does not fall under clause (A) of Explanation 1 as the appellant has offered an explanation and it has not found by the AO to be false. Further, even clause (B) of Explanation 1 does not apply as the appellant has been able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the penalty u/s 271(1)(c) of the Act. In his rival submissions, the ld. Counsel for the assessee reiterated the submissions made before the authorities below and strongly supported the impugned order passed by the ld. CIT(A). The reliance was also placed on the judgment of the Hon ble Supreme Court in the case of Price Waterhouse Coopers Pvt. Ltd. vs. CIT and Another reported at (2012) 348 ITR 306. 7. I have considered the submissions of both the parties and carefully gone through the material available on record. In the present case, it is an admitted fact that the assessee wrongly computed the short term capital gain to be carried forward due to some wrong formula entered into computation sheet used to work out the short term/long t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax audit report suggested that there was no question of the assessee concealing its income or of the assessee furnishing any inaccurate particulars. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. All that had happened was that through a bona fide and inadvertent error, the assessee while submitting its return, fialed to add the provision for gratuity to its total income. The assessee should have been careful but the absence of due care, in a case such as the present, did not mean that the assessee was guilty of either furnishing inaccurate particulars or attempting to conceal its income. On the peculiar facts of this case, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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