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TMI Blog2019 (6) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the Department, should have been shown as a perquisite because the employer had treated it as a perquisite and deducted tax at source. Though the assessee offered an explanation, it was not found to be acceptable by the AO. CIT(A), when he proposed to confirm the findings of the AO, should record his own independent reasons as to how the conduct of the assessee was deliberate in not disclosing the perquisites shown by the employer in Form 16 and as to how such a deliberate conduct would amount to concealment of income. CIT(A) did not give independent reasons in support of his conclusions except stating that the assessee s conduct was deliberate. This would be sufficient to set aside the orders passed by the CIT(A). The Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed these appeals by raising the following substantial questions of law : "i. Whether, on the facts and in the circumstances of the case, the Tribunal was right in deleting the penalty levied under Section 271(1)(c) of the Income Tax Act, 1962 ? And ii. Whether the reasoning and finding of the Tribunal was right in holding that furnishing of income under an incorrect head and its consequent short payment of taxes does not amount to concealment of income or furnishing of inaccurate particulars of income ?" 4. The short question, which falls for consideration, is as to whether the Tribunal was justified in allowing the appeals filed by the assessee and overturning the orders dated 29.11.2017 passed by the Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have been concealed by the assessee. Apart from that, various other explanation was given with regard to the factual aspects pointing out as to how the penalty proceedings could not have been invoked merely because additions have been made in the quantum assessment and that the Assessing Officer had to prove that there was a concealment of income or the returns of income furnished by the assessee or the documents submitted by the assessee during scrutiny proceedings were based on incorrect fact, falsity and untruth. In support of their contention, the assessee relied upon the decision of the Hon'ble Supreme Court in the case of Dilip N.Shrof Vs. JCIT [reported in (2007) 291 ITR 519] and various other decisions including the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conclusion that a Court or a Quasi Judicial Authority may arrive at. To say the least, the orders passed by the CIT(A) are devoid of reasons. 9. The orders passed by the CIT(A) further show that at the first instance, the assessee raised a preliminary objection with regard to the defective penalty notices dated 06.3.2017. The assessee contended that the notices did not contain any particulars of income alleged to have been concealed by the assessee. The Assessing Officer, in paragraph 6 of the penalty orders dated 28.3.2017, extracted the relevant portions of the show cause notices dated 06.3.2017, a reading of which shows that they did not contain any particulars of income alleged to have been concealed by the assessee. Though such a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) did not give independent reasons in support of his conclusions except stating that the assessee's conduct was deliberate. This would be sufficient to set aside the orders passed by the CIT(A). The Tribunal, in our considered view, examined the conduct of the assessee. 11. The assessee, who is a salaried employee, had disclosed the value of the stock appreciation rights and gain thereof and claimed the same as capital gain. However, the Assessing Officer treated the gain as a revenue receipt and levied tax. In such circumstances, whether it could have been stated that there was concealment of income or whether the assessee furnished inaccurate particulars of income. In our considered view, the Tribunal rightly held that it is nob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, but it cannot be disputed that the claim made by the assessee needs to be bonafide and if the claim, besides being incorrect in law, is malafide, Explanation 1 to Section 271(1) of the Act would come into play and work to the disadvantage of the assessee. We find from the facts in the case before us that there is no mala fide established by the Revenue against the assessee nor can we state that the conduct of the assessee is lacking in bona fide. Furthermore, in the decision in the case of Zoom Communication (P) Limited, the Court found that there was no difference of opinion as regards disallowance of the expenses and the incorrect computation given by the assessee. However, on facts, in the present case before us, we find t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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