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TMI Blog2018 (2) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the same assessee a single issue does not receive consideration at the hands of two separate and independent authorities, one exercising appellate jurisdiction and the other revisional jurisdiction. We find that the assessee had clearly made a choice to persuade the Commissioner of Income Tax to exercise his revisional powers under section 264 and not pursue his appeal before the Appellate Commissioner. The revisional authority therefore correctly proceeded to decide the revision petition of the assessee and on facts correctly allowed the same. This later observation needs no elaboration since the order of the Commissioner is self explanatory and eloquent. The assessee had made full disclosure of the capital gain tax and there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of penalty passed by the Assessing Officer before the Commissioner of Income Tax. On same day, he also made a communication to the Commissioner (Appeals) before whom his appeal was pending, in which, he conveyed as under: Dear Sir, Re :Dharmendra Vishnubhai Patel Appeal against order 271(1)(1) ( C) of I.T. Act Asst. Year 2011 2012 Sub: Withdrawal of Appeal The appellant had filed an online appeal against A.O.'s order u/s. 271(1)(C) dt.23/02/2016 on 24/09/2016. Efiling acknowledgment no. is 461739941240916, the copy of the same is enclosed herewith. The appellant had filed revision petition u/s.264 before Hon'ble Commissioner of Income Tax Gandhinagar on 16/02/2017. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee as well as in the statement of Total Income, wherein the assessee has shown ₹ 47,93,267 as LTCG and has paid Advance Tax of ₹ 10,00,000. Thus, there is no be willful effort by the assessee to conceal the LTCG income and evade tax thereon. The penalty order u/s. 271(1)(C), of the IT Act, 1961 has been passed in absence of any attempt of concealment of income or furnishing of inaccurate particulars of income by the assessee. 5. For the reasons given above, the order passed by the Assessing Officer levying penalty u/s.271(1)(C) of the I.T.Act, 1961 on 23/02/2016 is erroneous and is setaside. In the interest of justice and fair play, the Assessing Officer is directed to allow the claim of the assessee in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Act when appeal of the assessee pertaining to the same subject matter was pending before the Commissioner (Appeals). 8. We are not sure under what circumstances, the Assessing Officer was instructed to file the present petition. We have serious doubts whether on his own he could have taken such a decision to challenge the order of the superior authority. Whether he was acting under the instructions of the competent authority or the panel vested with such powers is not known. In an appropriate case, we would examine this aspect. For the present case, it is sufficient to recall that the assessee while filing petition under section 264 of the Act had simultaneously conveyed to the Commissioner (Appeals) that he does not want to pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revisional jurisdiction. Applying this principle to the facts on hands, we find that the assessee had clearly made a choice to persuade the Commissioner of Income Tax to exercise his revisional powers under section 264 of the Act and not pursue his appeal before the Appellate Commissioner. The revisional authority therefore correctly proceeded to decide the revision petition of the assessee and on facts correctly allowed the same. This later observation needs no elaboration since the order of the Commissioner is self explanatory and eloquent. The assessee had made full disclosure of the capital gain tax and there was no failure on his part to give necessary details thereof. 10. Before closing, we find it somewhat unusual to note that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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