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TMI Blog2015 (10) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... n claimed by the assessee, while computing capital gains arising on sale of land. 2. The brief facts of the case are : The assessee was proprietor of Poona Layers, a commercial Layer farm situated at village Gahunje, Dehu Road, Pune. The assessee expired on 16-06-2005 and after his demise the business affairs were looked after by his daughter Smt. Nirupa Kanitkar. During the financial year ended on 31-03-2006, the assessee entered into an agreement dated 07-12-2005 for sale of land situated at village Gahunje with M/s. City Park. The Long Term Capital Gain arising from the sale of land was offered to tax. In the computation of income, the cost of land was declared as Rs. 1,25,84,030/- as against cost shown in books of account at Rs. 12,58, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income Tax (Appeals) vide impugned order partly accepted the appeal of the assessee by deleting the penalty in respect of denial of adjustment of brought forward business loss. However, the Commissioner of Income Tax (Appeals) rejected the contentions of the assessee with regard to inadvertent error in mentioning the wrong amount of cost of acquisition of land at the time of filing of return of income. Against these findings of Commissioner of Income Tax (Appeals), the assessee is now in appeal before the Tribunal. 3. Shri Sunil Pathak appearing on behalf of the assessee submitted that the assessee had died in June, 2005 i.e. even before the filing of the return. The assessee is being represented by his legal representative. After h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case happens to deal with the case of the daughter of the assessee, he is prejudiced against the assessee, as is evident from the findings given by him in the impugned order. The assessee fairly admits that the punching of additional zero (0) while writing the cost of land in computation was a mistake for which valid explanation was furnished. Therefore, no penalty is leviable. In support of his submissions, the ld. AR placed reliance on the following case laws: i. CIT Vs. Lakshmi Vilas Bank Ltd.; 303 ITR 428 (Madras H. C.). ii. CIT Vs. M/s. Bennett Coleman & Co. Ltd.; Income Tax Appeal (LOD) No.2117 OF 2012, decided on 26-02-2013. 4. On the other hand Shri Rajesh Damor representing the Department submitted that the assessee did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by Shri Nitin P. Kibe (son) on Late Shri Padmakar R. Kibe and not Smt. Nirupa Kanitkar. In the first instance the inference drawn by the Commissioner of Income Tax (Appeals) from the return in the case of Smt. Nirupa Kanitkar is unjustified. Secondly, since, the return has been filed by Shri Nitin P. Kibe, son of the deceased assessee, the Commissioner of Income Tax (Appeals) has no occasion to draw inference from the return filed by Smt. Nirupa Kanitkar in her own case. As far as delayed payment of tax is concerned, Shri Nitin P. Kibe has paid the tax after arranging funds from various sources. No estate of deceased Late Shri Padmakar R. Kibe is left for the payment of tax. The ld. AR further submitted that in the impugned order the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee primarily on the ground, that after the death of Late Shri Padmakar R. Kibe his business was looked after by his daughter Smt. Nirupa Kanitkar. Smt. Nirupa Kanitkar in her own case for the assessment year 2008-09 had allegedly committed some mischief by changing the amount shown in the agreement while filing the return of income, to evade tax. Admittedly, in the present case, the return of income has been filed by Shri Nitin P. Kibe, son of Late Shri Padmakar R. Kibe and not by Smt. Nirupa Kanitkar. It is equally undisputed that the assessment year 2006-07 was the first year when computerized return of income was filed. Since, it was a shift from manual filing of return to computerize filing of return, there is high probability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to Tribunal. The Tribunal found that the mistake was due to misplacement of decimal and that there was no malafide intention on the part of the assessee. The misplacement of decimals could not tantamount to concealment of particulars or furnishing inaccurate particulars. The Hon'ble High Court upheld the findings of the Tribunal and held that the burden always lies upon the Department to establish that the assessee had concealed his income. 10. We find that in the present case, the assessee had furnished the explanation giving reasons for mistake in mentioning the amount of cost of acquisition of land. It has been stated that the mistake was bonafide. In the books of account the amount was correctly mentioned. Since, it was the first yea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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