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TMI Blog2012 (8) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... has raised following grounds of appeal: 1. On the facts and in the circumstances whether the Ld. CIT(A) was right in deleting the penalty u/s 271(1)(c) of the Income Tax Act, 1961 when the original return was filed beyond the due date as provided u/s 139(1) of the Income-tax Act, 1961. 2. On the facts and in the circumstances whether the Ld. CIT(A) was right in deleting the penalty u/s 271(1)(c) of the Income Tax Act, 1961 when for the purpose of calculation of penalties, the difference between the tax on the income shown in the first returns and the tax on the incomes assessed is taken as the amount of tax that would have been avoided G.C. Agarwal vs. CIT (1990) 186 ITR 571 (Supreme Court). 3. On the facts and in the circumstances whether the Ld. CIT(A) was right in deleting the penalty u/s 271(1)(c) of the Income Tax Act, 1961 when the assessee failed to perform a statutory obligation. 4. On the facts and in the circumstances whether the Ld. CIT(A) was right in deleting the penalty u/s 271(1)(c) of the Income Tax Act, 1961 without considering the case laws cited in the order CIT vs. Warsar Hussain (1988) 171 ITR 405 ( (Patna) Addl. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.03.2008 beyond the due date u/s 139(1) of I.T. Act this return was subsequently revised on 31.03.2008 showing the income of ₹ 24,60,140/-,. The A.O. during the assessment made an addition disallowing 25% of the land development charges by holding as under and initiated penalty u/s 271(1)(c) of the I.T. Act. The assessee during the year has sold 19.5 kanals of land at Hauari Bagi, Jammu for total consideration of 41,45,000/-. In order to make the sale, of the land, the assessee has claimed development charges of ₹ 10,72,500/-. The development has been shown as carried out during the financial year 2006-07. This land was purchased in 1986. After, claiming indexed cost of acquisition at ₹ 13,58,749/- the assessee has shown the balance amount of ₹ 17,13,751/- as long term capital gain from the sale of the above. Further the details wee obtained from the assessee regarding the nature of development charges. It was explained by the assessee that the land in reference was not a saleabale land and there were deep khads (trench) in the said land. In order to make it saleable, it was filled with soil and the assessee has incurred the expenditure in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, as soon as the mistakes came to the notice of the assessee, the return was revised on 31.03.2008 and tax paid in view of the above, the intention and bonafide of the assessee can not doubted. iii) Your kind attention is invited to the following judicial decision: a) CIT vs. S.S. Karuppasamy Sons 254 ITR (2002) 591 _ Madras High Court: Penalty concealment if income assessee filing revised return, disclosing addition of income appellate Tribunal finding that assessee was bonafide and mere finding of revised return did not warrant inference that assessee had deliberately concealed income High court appeal no question of law arises Income tax Act, 1961 S.s.260A, 271(1)(c) expln 1 c) G.L. Didwania vs. ITO 224 ITR (1997) 687 Supreme Court Mere omission from return of an item of receipt amounts neither to concealment nor to deliberated furnishing of inaccurate particulars of income, unless and until there is some evidence to show that the omission was attributable to an intention or desired on the part of the assessee to hide or conceal the income so as to avoid imposition of tax thereon . the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnishing of inaccurate particulars since this is a case of pure estimation on which the penalty under section 271(1)(c) cannot be sustained and therefore, the Ld. CIT(A) vide paras 4.3 to 4.5 of his order deleted the penalty so levied. 8. The Ld. DCIT(DR), Mr. Tarsem Lal, argued that the assessee has filed belated return and therefore, the return under section 139(5) cannot be revised. By filing a revised return, the assessee had admitted the concealment and therefore, the A.O. has rightly levied the penalty. Since no evidence with regard to development expenses have been produced, therefore, the penalty has rightly been levied. Mr. Tarsem Lal, ld. DCIT(DR) prayed to reverse the order of the ld. CIT(A) and confirm the order of the A.O. He relied upon the decisions of various courts of law to support his arguments, as under: i) Kumar Jagdish Chandra Sinha (Dead) through LRs ETC. vs. CIT (1996) 220 ITR 67 (SC) ii) CIT vs. Onkar Saran Sons (1992) 195 ITR 1 (SC) iii) ITO vs. R.K. Brothers (2003) 87 ITD 649 (All) iv) Union of India Ors. vs. Dharmendra Textile Processors Ors. (2008) 306 ITR 277 (SC) v) Smt. Kusum Jaiswal v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and has come out with honesty to revise the return within just four days of filing the belated return. There is no dispute to the fact that the assessee had filed the belated return and as per section 139(5), the revised return cannot be filed in such a case. There is technical breach of the provisions of the Act. But at the same it flows from a bonafide belief of the assessee, which has been corrected by revising return immediately after four days of filing the original return. Therefore, relying upon the decision of the Hon ble Supreme Court, in the case of G.L. Didwania vs. ITO (supra), we find no infirmity in the order of the ld. CIT(A), who has rightly cancelled the penalty so levied 9.2. As regards the decisions relied upon by the Ld. DCIT(DR) Mr. Tarsem Lal, none of the case is applicable in the present facts and circumstances of the case and on bonafide belief. Therefore, we find no infirmity in the order of the Ld. CIT(A) in this regard. 9.3. As regards the levy of penalty on account of addition of development charges, we concur with the views of the ld. CIT(A) that the AO has not pointed out any specific instance of the vouchers and therefore, disall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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