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TMI Blog2016 (3) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished the explanation to the assessee by filing a revised computation of income offering long term capital gains voluntarily. We also find that the assessee had also given explanation for not offering the same in the original return of income due to his bonafide belief. His bonafide explanation has not been found to be false by the ld. AO. From the above, it could be safely concluded that as per Explanation 1 to section 271 (1) ( c ) of the Act, no penalty could be imposed on the assessee in the facts of the case. - Decided in favour of assessee - ITA No. 1700/Kol/2012 - - - Dated:- 17-2-2016 - Shri N.V. Vasudevan, Judicial Member, and Shri M. Balaganesh, Accountant Member For The Appellant : Md. S.S Alam, JCIT, ld.Sr.DR For The Respondent : Shri K.K. Chhaparia,FCA, ld.AR ORDER SHRI M.BALAGANESH, AM This appeal of the revenue arise out of the order of the Learned CIT(A)-I, Kolkata in Appeal No. 63/CC-VIII/CIT(A)C-I/Kol/11-12 dated 25th September, 2012 for the assessment year 2008-09 against the order of penalty levied by the Learned AO u/s. 271(1)( c) of the Income Tax Act 1961 (hereinafter referred to as the Act ). 2. The only issue to be decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposing the impugned penalty. He further argued that the ld. AO could only go step by step and initially details of purchase and sale of shares and mutual funds were called for by the ld.AO in the course of assessment proceedings for explanation. He argued that when the case got selected for scrutiny, the assessee disclosed long term capital gain in his revised computation of income. The ld.DR further argued that the assessee was in complete knowledge that STT (Securities Transaction Tax ) was not suffered on such sale of share transaction as it was done on off market. Thus, the assessee ought to have disclosed the same in his original return of income. He also argued that the assessee has merely filed revised computation of his total income and did not bother to file revised return of income. Thus, the ld.AO was justified in imposing the penalty. The ld.DR in support of his arguments has relied on the following case laws:- * 61 Taxmann.com 363 (Chandigarh Tribunal) *64 Taxmann.com 91 (Calcutta High Court) 4.1 In response to this, the ld.AR argued that since the original return of income was filed belatedly, the assessee could not file any revised return of income and inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, the assessee came forward to file a revised computation by disclosing the long-term capital gains on such sale of shares of M/s. Vishal Retail Ltd before the ld.AO together with the reasons for not disclosing the same in the original return of income. We also find that the assessee was duly prevented from filing the revised return of income for the same. The original return filed by him was belated, which prevented the assessee from filing of revised return. We also find from the order sheet entry that the assessee was not confronted with the issue of wrong claim of exemption towards long term capital gains on sale of shares of M/s. Vishal Retail Ltd as pointed out by the ld.AO in his penalty order vide page 2. The plea of the assessee that the claim for exemption u/s. 10(38) of the Act was a bonafide mistake made by the assessee has to be accepted. There is no material on record to show that the claim was not made under bonafide mistake. We find that the case laws as relied on by the ld.DR were in respect of search and survey cases and addition was made pursuant to materials found during the survey and search and after detection by the department in the course of search and sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of 2010] has held that : 13. The Assessing Officer was not correct in holding that submitting inaccurate claim would amount to giving inaccurate particulars. Such a contention of the Department is specifically rejected by the Supreme Court in a recent judgment in the case of CIT Vs. Reliance Petroproducts Pvt. Ltd (2010) 322 ITR 158. 5.1.4. In the landmark judgment of the Hon ble Apex Court in the case of Hindustan Steel vs. State of Orissa 83 ITR 26, wherein it was held that- An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceedings, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are satisfied that the assessee had committed an inadvertent and bona fide error and had not intended to or attempted to either conceal its income or furnish inaccurate particulars. ? 5.1.6 We place reliance on the Third Member decision of the co-ordinate bench of Delhi Tribunal in the case of Addl CIT vs Prem Chand Garg reported in (2009) 31 SOT 97 (Delhi) (TM ) dated 11.5.2009 , wherein it was held that :- 19. The fact , whether there is concealment of income or whether inaccurate particulars thereof have been furnished is essentially a question of fact. To find out that or to decide which, all the attending circumstances have to be taken into account. The question is at what point of time this material fact is to be found out. Generally it is with reference to the return of income and at that time it is to be seen whether there was concealment of income from or furnishing of inaccurate particulars thereof in the return of income chargeable to tax. But there may be cases, where an income is not declared in the return or the particulars of income shown inaccurately in the return but assessee on realization of mistake, omission or misdeed rectifies that and correct h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vised the returns or that the offer was by letter to avoid harassment to the assessee and the donors who were non-resident persons, it cannot convert an offer to tax as concealment of income. Therefore, in my opinion the assessee has not furnished inaccurate particulars of the income in the returns. 22. Therefore, mere omission of the surrendered income from the return of an item of receipt does neither amount to concealment nor furnishing of inaccurate particulars of income unless and until there is some evidence to show exist or some circumstances found from which it can be gathered that the omission was attributable to an intention or a desire on the part of the assessee to hide or conceal the income so as to avoid the imposition of tax thereon. Apart from the surrender there was nothing more on record to hold the assessee guilty of offering the said amount on detection of the concealment. Even in assessment order there is nothing of that sort. In the assessment proceedings the Assessing Officer has raised some specific question not based upon information in the possession of the revenue. These are : Sr.No. 4 Bank statement of all bank accounts maintained by you i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the impugned issue. We have heard Mr.Sinha extensively and gone through the impugned judgement and order of the Learned Tribunal. The Learned Tribunal has recorded the fact that the record does not show that the Assessing Officer had detected the additional income in the assessment proceedings. It further recorded upon perusal of the records that small variation in income was due to bona fide mistakes and difficulties in working out the undisclosed income. It is further recorded that the voluntary action on the part of the assessee to settle the tax issues for peace of mind appears from the conduct of the assessee. While recording the aforesaid fact, the Learned Tribunal ultimately relied on a decision of the Tribunal rendered in the case of Additional CIT vs Prem Chand Garg. Mr. Sinha, however, is unable to say whether the earlier decision of the Tribunal in the case of Prem Chand Garg has been challenged or not. Moreover, the learned Tribunal has also relied on a large number of decisions of the various court on the same point. Hence when the point is covered, we do not find any merit in this appeal for admission. Accordingly, the same is dismissed. 5.2 We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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