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TMI Blog2017 (1) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was not available in the case of short term capital gain. The original return itself was filed after the search action in response to notice under section 153A of the act which was revised to correct the mistake as elaborated above in this order. Looking to the above facts, we find that correction of working of capital gain in view of above stated facts and circumstances is not the case where the assessee had concealed the particular of income declared only because of search action. Accordingly, we considered that the Ld. Commissioner of Income Tax(A) is not justified in sustaining the penalty levied by the assessing officer. - Decided in favour of assessee. - ITA No. 2295 /Ahd/2013 - - - Dated:- 23-12-2016 - Shri R. P. Tolani, Judicial Member And Shri Amarjit Singh, Accountant Member Revenue by : Shri James Kurian, Sr. D.R. Assessee by : Shri Sakar Sharma, A.R. ORDER Per Amarjit Singh, Accountant Member This assessee s appeal for A.Y. 2009-10, arises from order of the CIT(A)-I, Ahmedabad dated 27-06-2013 in appeal no. CIT(A)- I/CC.1(4)/90/2012-13, in proceedings under section 271(1)(c) of the Income Tax Act, 1961; in short the Act . 2. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271(1)(c) r.w.s. 5A of the act and levied the penalty of ₹ 2,51,880-. 4. Aggrieved against the order of the assessing officer, the assessee has filed before the ld. Commissioner of Income Tax(A). The Ld. Commissioner of Income Tax(A) has confirmed the penalty. The decision of the Ld. Commissioner of Income Tax(A) is reproduced as under:- 4.23 When dealing with the cases where either no search was conducted or a search was conducted prior to the insertion of explanation 5A to section 271(1)(c) the idea of deliberateness is implicit in the word 'conceal'. It was held by several courts that concealment is not accidental or involuntary, it is planned and voluntary. 5. The Hon'ble Apex Court in one of its recent judgements in the case of Reliance Petroproducts Pvt Ltd., (322 1TR 158) made the following observations: 8. Therefore, it is obvious that it must be shown that the conditions under section 271(1)(c) must exist before the penalty is imposed. There can be no dispute that everything would depend upon the Return filed because that is the only document, where the assessee can furnish the particulars of his income. When such particulars are found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was overruled by this Court in Dharamendra Textile Processors' case (supra), was that according to this Court the effect and difference between section 271(1)(c) and section 27 6C of the Act was lost sight of in case of Dilip N. Shroff (supra). However, it must be pointed out that in Dharamendra Textile Processors' case (supra), no fault was found with the reasoning in the decision in Dilip N. Shroff's case (supra), where the Court explained the meaning of the terms conceal and inaccurate . It was only the ultimate inference in Dilip N. Shroff's case (supra) to the effect that mens rea was an essential ingredient for the penalty under section 271(l)(c) that the decision in Dilip N. Shroff's case (supra) was overruled. 9. We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Webster's Dictionary, the word inaccurate has been defined as :- not accurate, not exact or correct; not according to truth; erroneous; as an inaccurate statement, copy or transcript. We have already seen the meaning of the word parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation of the assessee, penalty under section 271(1)(c) is not leviable. 5.5 In Dy. CIT vs K.Natarajan (2010) 34 DTK 414 (Bang.), it was held that penalty under section 271(1)(c) is leviable in respect of unaccounted sales detected on the basis of documents found during the search and unaccounted debtors which were not declared in the statement under section 132(4). The A.O. having estimated the income from sale of scrap at 7 per cent as against 5 per cent shown by the assessee, penalty is leviable only to the extent of net profit estimated at 5 per cent by the assessee. In view of the Explanation 5, no penalty is leviable in respect of the amount of debtors -isJ declared in the statement under section 132(4) for which the tax stands paid. 5.6 In Asstt. CIT vs Rupesh Bholidas Patel (2008) 16 DTK 369 (Ahd.), it was however, been held that assessment of assessee having already been completed before the date of search on a return filed under section 139, said assessment did not abate and return filed in response to notice u/s. 153A could not be treated as one filed u/s. 139 so as to extend benefit of Explanation 5 to section 271(1)(c) to the assessee. 5.7 In Dy. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the true income in the original return. At the same time, it cannot be said that the revised return is of no consequence at all. The original return cannot be considered in isolation without reference to the conduct of the assessee subsequent to the filing of the original return. The question whether a revised return is voluntary or not has to be decided in the light of the entire material brought on record and whether the revised return was filed when the assessee is cornered by the evidence or material collected by the revenue authorities or before that stage. On facts, the revised return was filed by the assessee only when it was cornered and the income tax authorities had collected material on the basis of which it could be said that the claim for deduction was false or bogus. The filing of the revised return is thus an act of despair and the assessee can gain nothing from it. 5.11 When the present case is examined in view of this legal position, it is found that in this case appellant failed to offer any explanation regarding not inclusion of the income declared in the return of income filed in response to notice u/s 153A in the return filed prior to the search. As me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has revised his declared income to ₹ 1,37,77,640/- on 26.12.2011.We noticed that at the time of filing of return of income the assessee had computed long term capital gain as long term because this land was acquired initially through banakhat/agreement for sale on 1st Nov, 1994. for which the purchase deed was registered on 24th Feb, 2006. We have also considered the facts reported by the assessee and occurring of mistake because the period of holding was required to be calculated from the date of registration of purchase document and not from the date of banakhat. We find that assessee has disclosed the complete details of sale and purchase of land. We have noticed that the differences in the income was arising only because of indexation of the purchase of land which was not available in the case of short term capital gain. The original return itself was filed after the search action in response to notice under section 153A of the act which was revised to correct the mistake as elaborated above in this order. Looking to the above facts, we find that correction of working of capital gain in view of above stated facts and circumstances is not the case where the assessee had co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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