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TMI Blog2017 (9) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... ealment penalty u/s.271(1)(c) - Decided in favour of assessee. - ITA No. 1744/PUN/2014 - - - Dated:- 15-9-2017 - SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri N.R. Agarwal For The Revenue : Shri Vivek Aggarwal ORDER PER VIKAS AWASTHY, JM : This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals), Aurangabad dated 30-07-2014 for the assessment year 2004-05 confirming levy of penalty u/s. 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. Shri N.R. Agarwal appearing on behalf of the assessee submitted that the assessee company is a subsidiary of M/s. Nath Seeds Ltd. During the course of scrutiny assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tribunal in the case of Nath Seeds Ltd. Vs. ACIT (supra). 3. Shri Vivek Aggarwal representing the Department vehemently defended the orders of Commissioner of Income Tax (Appeals) in confirming levy of penalty in respect of disallowance of capital loss of ₹ 2.43 crores. The ld. DR submitted that the assessee failed to furnish relevant documents in support of loss claimed on sale of investment. The Assessing Officer found the claim of assessee fake and fictitious. However, the ld. DR fairly admitted that Co-ordinate Bench of the Tribunal in the case of sister concern of assessee i.e. Nath Seeds Ltd. Vs. ACIT (supra), has deleted penalty on the additions made under similar circumstances. 3. Shri Vivek Aggarwal representing the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen prevailing market rates of that date/time. All these transactions are done off-line. However, the sale price of the shares is based on either at market rate or the NAV of the company. In effect, the Assessee sold the shares at the rates below par. There is no contrary evidence with the AO to substantiate that the sale price is manipulated. It is also a fact that the Assessee financed S2 to purchase the securities. On this aspect, we don't find any abnormality. All these transactions are duly entered in the concern books of accounts of the Assessee. In effect, the AO does not have any contrary information or figures and therefore, he doesn't dispute any of the above facts. On seeing the 1. said chain of transfer of both listed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fictitious ones may be okay from the point of view of the quantum additions. But when it comes penalty proceedings, AO needs to rebut the explanation of the Assessee by bringing incriminating evidence on record to demonstrate that the claim of the Assessee is not bonafide and the explanation given by the Assessee suffer from malafide. In the instant case, but the different and a possible view taken by the AO in levying the penalty, we find that no incriminating material is gathered by the AO to prove that the said transactions are fictitious or fake. Generally, what is not true or genuine is the fake or fictitious. On analysing the facts of the present case, we find the sale transactions are genuine for the purpose of penalty proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t off against the gains, if any, in the later Assessment Years. Thus, in our view, the Assessee discharged the initial or preliminary onus cast him in so far as furnishing of correct particulars. We don't find any inaccuracy in matters of furnishing of details/particulars. Thus, it is not the case of deemed concealment by way of furnishing of particulars. Hence, it is not the fit case of levy of concealment penalty u/s.271(1)(c) of the Act for the allegation of furnishing of inaccurate particulars. Consequently, the conclusions of the AO and the CIT(A) on this part of the penalty needs to be reversed. Accordingly, relevant arguments/grounds of the Assessee are allowed. 5. It is an admitted position that the facts in the case of as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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