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TMI Blog2018 (6) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. (i) That on facts and circumstances of the case and in law the Ld. CIT appeals has erred in not dealing with ground No.2. (ii) That the penalty order was the time barred order not served upon the appellant within the stipulated time. 3. (i)That without prejudice to the above contentions on the facts and circumstances of the case and in law, the Ld. CIT Appeals erred in confirming the penalty of Rs. 10,50,000/- illegally levied. (ii) That all facts of the case were transparently available on record. By revising the return and claiming long term capital gain on sale of ESOPS originally declared as short term capital gain, there is no concealment of income. 4. (i)That without prejudice to the above contentions on the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated by issuing notice u/s 274 read with Section 271(1)(c). In the meantime against the assessment order, the assessee preferred an appeal before the CIT(A). The CIT(A) vide order dated 29/11/2010 dismissed the appeal of the assessee. 5. The Assessing Officer while passing penalty order u/s 271(1)(c) held that the CIT(A) in quantum confirmed that the profit on sale of ESOP shares comes to Rs. 97,17,279/- which is assessable as Short Term Capital Gain instead of Long Term Capital Gain. The assessee has already shown Short Term Capital Gain of Rs. 10,56,000/- and therefore the Assessing Officer held that the assessee furnished inaccurate particulars with regard to Short Term Capital Gain of Rs. 86,61,279/. The Assessing Officer further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities. The Ld. AR further submitted that this was due to the assessee's pre-occupation in Noida Job. Therefore, the assessee should have not been penalized. 8. The Ld. DR relied upon the penalty order and CIT(A) order. The Ld. DR further submitted that the assessee has not contested the addition before the Tribunal. 9. We have heard both the parties and perused the material available on record. The Revenue has not made out any case that the assessee filed inaccurate particulars. In fact all the particulars were before the Assessing Officer during the assessment proceedings. The Hon'ble Apex Court in case of Reliance Petroproducts Pvt. Ltd. (Supra) held as under: "18. We must hasten to add here that in this case, there is no findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished all the details of its expenditure as well as income in its Return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the Return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under Section 271(1)(c). If we accept the contention of the Revenue then in case of every Return where the claim made is not accepted by Assessing Officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the Legislature." Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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