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TMI Blog2016 (2) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... f fact that the Respondent-assessee had not concealed its income nor filed inaccurate particulars attributable to capital gains in its regular return of income, the view taken to delete the penalty is a possible view. - Decided in favour of assessee - INCOME TAX APPEAL NO. 2331 OF 2013 - - - Dated:- 9-2-2016 - M.S.SANKLECHA AND B.P.COLABAWALLA, JJ. For The Appellant : Mr. A. R. Malhotra a/w Mr. N. A.Kazi For The Respondent : Mr. Nishit Gandhi i/b Mr. Vipul Joshi P. C.: This Appeal has been filed by the Revenue under Section 260A of the Income Tax Act, 1961( the Act ) assailing the order dated 1st May, 2013 passed by the Income Tax Appellate Tribunal (Tribunal). The impugned order dated 1st May, 2013 deleted the penalty imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l income at ₹ 1.74 Crores. The Assessment order also initiated penalty proceeding under Section 271(1)(c) of the Act, for claiming incorrect exemption. 5 By an order dated 27th May, 2009 the Assessing Officer imposed a penalty of ₹ 55.79 lakhs under Section 271(1)(c) of the Act for having concealed particulars of income and furnishing inaccurate particulars thereof. This on the ground that the amount of ₹ 1.62 Crores had originally been claimed as Long Term Capital Gain being exempt in its regular return of income. However, the same was withdrawn and offered to tax as business only consequent to the survey on 5th October, 2007. 6 Being aggrieved by the order imposing penalty, the Respondent-assessee preferred an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 ITR 158. Further it holds that mere change in head of income by the Assessing Officer from that claimed, would not attract penalty. In support, reliance was placed upon the decision of this Court in Commissioner of Income Tax v/s M/s. Bennett Coleman and Co.Ltd (Income Tax Appeal(L)No.2117 of 2012 rendered on 26th February, 2013. The impugned order also records the fact that the amount claimed as long term capital gain under Section 10(38) of the Act while filing its regular return of income on 31st October, 2006 was offered as part of business income during survey of proceeding only by to buy peace. In the circumstances, the impugned order upheld the deletion of penalty of the CIT(A). 8 Mr. Malhotra, learned counsel appearing in suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confronted, Mr Malhotra submits that evidence of no remand report having been called for is the absence of it being mentioned in the order of the CIT(A). Thus, he wants us to infer that no remand report was called for. However, it is also to be noted that before the Tribunal, the Revenue did not raise this issue. This could equally lead to the inference that either the remand report was called for or at the very least, in any event, the Revenue did not have any grievance on the remand report not being called for before the Tribunal. This submission on behalf of the Revenue requires determination of facts which have to be determined by the Tribunal. It is not open at this stage in an appeal under Section 260A of the Act to go into facts whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the survey which again indicated the fact that he had no intention to declare its true income. In any event, the facts in the present case as found by the CIT(A) and the Tribunal is that the Respondentassessee had disclosed an amount of ₹ 1.62 Crores in the original return by crediting the same to its capital account being Long Term Capital Gain on the sale of share. Thus, the Appellant was under bonafide belief that the income from long term capital gain was exempt from tax. Thus, the decision of the Apex Court would not apply to the facts arising in the present case . 11 The contention on behalf of the Revenue that in case there is a tax impact by virtue of change of head during the assessment proceedings then penalty is imposa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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