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TMI Blog2018 (7) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty proceedings was a plausible explanation. In the case under consideration the assessee had claimed that it was under bonafide impression that profit arising to it was taxable under the head capital gains. Taxability of an item of income under a particular head should not result in levy of penalty - Decided in against revenue - I. T. A. /1093/Mum/2016 - - - Dated:- 18-5-2018 - S/Shri Rajendra, Accountant Member and Ram Lal Negi, Judicial Member Revenue by : Shri V. Justin -CIT-DR Assessee by : Shri S. C. Tiwari Ms. Rutuja Pawar ORDER Per Rajendra, AM Challenging the order, dated 18/12/2015, of the CIT(A)-28 Mumbai the Assessing Officer (AO)has filed the present appeal. Assessee-firm, a builder and develope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts order dated 28. 10. 2014 (ITA N0. 6138/M/2012)the Tribunal also dismissed the appeal of the assessee. 3. 1. In the meanwhile, the AO initiated penalty proceedings against the assessee and held that the assessee had evaded tax to the extent of ₹ 41. 00 lakhs by way of this change of head of income. The AO held that it was not a case where two views were possible or a difference of interpretation or opinion, that the assessee had deliberately taken advantage of the lower tax effect of capital gains and thereby evaded tax. Accordingly, the AO held that it had concealed the particulars of its income and levied a penalty of ₹ 41, 02, 084 u/s. 271(1)(c)of the Act. 3. 2. Aggrived by the order of the AO, the assessee preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the same transaction which did not find favor with the AO/the higher appellate authorities, that facts were not in dispute between the AO and the assessee, that it was not the case of the AO that some material fact was concealed, that fact of sale is disclosed, the sale consideration was disclosed, that the asset was classified as investment in the balance sheet, that the ultimate view was that the profit should be taxed as business income, that it was not a case of concealment of income. Finally, he deleted the penalty levied by the AO. 4. Before us, the Departmental Representative(DR)stated that FAA and the Tribunal had confirmed the addition made by the AO in quantum proceedings, that the AO had rightly levied the penalty. The Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. As far as quantum proceedings are concerned, they stand on different footing. Any addition to the income of an assessee or disallowance of a claim cannot and should not lead to automatic levy of penalty. What has to be seen is that as to whether the explanation filed by the assessee during the penalty proceedings was a plausible explanation. In the case under consideration the assessee had claimed that it was under bonafide impression that profit arising to it was taxable under the head capital gains. Taxability of an item of income under a particular head should not result in levy of penalty. After considering the peculiar facts and circumstances of the case under consideration, and taking note of the judgment of the Hon ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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