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TMI Blog2016 (1) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the case & in law, the learned CIT(A)-V, Pune erred in law and on facts in levying concealment penalty of Rs. 1,06,800/- on the appellant for furnishing inaccurate particulars of income. 2. Alternatively and without prejudice, the learned CIT(A)-V, Pune erred in levying concealment penalty @ 150% on the alleged concealed particulars of income when the law permits levy of minimum penalty of 100%. The appellant craves leave to add, alter or amend to the grounds of appeal, before or at the time of hearing." 4. The appeal pertains to levy of penalty under section 271(1)(c) of the Act amounting to Rs. 1,06,800/- @ 150% of the tax evaded. 5. The relevant facts as briefly stated are that the assessee has claimed long term capital gains of Rs. 3,36,476/- on account of sale of Database Finance Ltd. shares which are as under :- Details of share purchase Purchase details scrip Sr. No. Purchase date Purchase from (Broker) Qty Purchase Rate Purchase amount Demat Date Payment details 1 13.04.2001 G.R. Pandya Share Broking Ltd. 400 12.35 4942 05.09.2002 Cash paid on 13.04.2001 Details of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed that the onus placed upon the appellant to prove the genuineness of the transaction was not discharged by him. 9. In the backdrop of the enquiries conducted by the Income Tax Department, the Assessing Officer required the assessee to prove the genuineness of the capital gains vide his office letter dated 13.03.2008. The assessee was also asked to produce the Mumbai Brokers as the assessee's witness. In response, the assessee merely filed contract notes in support of purchases and sales. The assessee, however, expressed his inability to produce the Mumbai Brokers who sold the shares of the assessee on the plea that they are not traceable. The Assessing Officer observed that the transactions are peculiar for the following reasons :- "1) The assessee's father is regularly dealing in shares in Pune wherein he deals with 4-5 brokers. However, this is the only transaction with the Mumbai Brokers. 2) Payment for the purchase of shares has been done in cash. 3) The purchase transaction is not routed thought B.S.E. BOLT system. It is an off market deal. 4) Shares have come to the Demat Account on 5-09-2002 whereas the share was purchased on 13-04-2001. 5) Shares were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax evaded. Accordingly, he reduced the penalty to150% of the tax evaded. 12. Aggrieved by the order of the CIT(A), the assessee is in further appeal before us. 13. Before us, the Ld. Authorized Representative for the assessee contended that penalty is not exigible in the facts of the case. He observed that the transactions of purchase and sale are backed by broker notes. He contended that the shares were actually delivered in his Demat Account which is a reality. The appeal has not been preferred before the Tribunal in the quantum appeal only to avoid the protracted litigation. He, therefore, pleaded that the penalty sustained by the CIT(A) should be set-aside and cancelled. In support of the contentions raised, the Assessee relied on following case laws: (i) Smt. Smita P. Patil & Ors. vs. ACIT, (2014) 159 TTJ 0182 (Pune); (ii) ITO vs. Ajay Shantilal Lalwani & Neelesh Shantilal Lalwani, (2012) 145 TTJ 511 (Pune); (iii) DCIT vs. Smt. Hansa Choudhary, (2012) 143 TTJ 76 (Jd)(UO); (iv) Sri Moti Udharam Punjabi vs. ACIT, ITA No.659/PN/2011 and Others dated 31.10.2012; (v) CIT vs. Shivlal Desai & Sons, (1978) 114 ITR 377 (Bom); (vi) CIT vs. Deeksha Holidays Ltd., (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to declare wrongful long term capital gains. In MAK Data (P.) Ltd. (supra), the Hon'ble Supreme Court held on facts that when the assessee had no intention to declare its true income and no explanation is offered for alleged concealment of income, the imposition of penalty justified. The Assessing Officer has reportedly made detailed enquiries and his action is based on incriminating evidences. In the facts of the present case, we are inclined to agree with the findings of the lower authorities that the circumstances exist to say that transactions are not bona-fide per se. We find ourselves in complete agreement with the action of the lower authorities for imposition of penalty. The decisions cited by the Assessee does not set out any proposition of law and are distinguishable on facts. The ITAT Pune in the case of Smita Patil (Supra) inter alia arrived at a finding that Assessee failed to establish clear case against the assessee and contract notes were found to be genuine. This is not so in the present case. Likewise, facts in other cases cited are materially different. Incisive circumstances pitted against the assessee in the present case pointing out to dishonest conduct were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .298099 of Rs.698457/- dt. 14/01/2004 Long Term Capital Gain 666457.13 20. In this assessment year also, as noted, the facts are broadly identical and therefore not repeated. However, there is one important variance. The shares of the impugned scrip Suryadeep Salt Ltd. (SSL) in question were transferred in the demat account of the Assessee prior to its sale unlike in the earlier year. The transfer towards purchase by the selling broker was albeit after more than 7 months of purported purchase by the Assessee. As noted in the quantum order of the CIT(A), the shares were credited to the demat account of the Assessee on 5-6-2003. It is also noted in this year that the purchase considerations were paid by cheque dated 25/12/2002 albeit delayed by 2 to 3 months of the purchase as against purported cash payment for the earlier year. In the backdrop of such variances, the transaction of long term capital gains declared by the Assessee was treated as short term capital gain by the CIT(A) in quantum order instead of undisclosed income treated by the AO. Thus, partial relief was granted. 21. Having noted above variances, We find that assessee has made cheque pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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