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TMI Blog2019 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... of income or whether the assessee furnished inaccurate particulars of income. In our considered view, the Tribunal rightly held that it is nobody's case that the assessee concealed the allotment of stock appreciation rights or gain arising out of such appreciation. In fact, there had been a difference of opinion or difference in interpretation of the manner, in which, the assessee interpreted the returns. Therefore, when there were two opinions possible, it cannot be stated that the conduct of the assessee amounted to deliberate concealment of income with certain mala fide intentions. Revenue has not made out any case to interfere with the order passed by the Tribunal - Decided against revenue. - Tax Case Appeal No.302 of 2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who confirmed the order of penalty passed by the Assessing Officer by order dated 28.3.2017 under Section 271(1)(c) of the Act for the assessment year 2011-12. 5. It is not in dispute that the assessment proceedings had attained finality and the assessee was made liable to pay tax. Thereafter, the Assessing Officer issued a show cause notice dated 06.3.2017 stating that during the course of assessment proceedings, the Assessing Officer held that the perquisites in the form of Employee Stock Option Plan (ESOP) sold by the assessee were liable to tax in India, that the CIT(A), vide order dated 11.1.2016, came to the conclusion that the action of the Assessing Officer to tax the perquisites under the head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007) 291 ITR 519] and various other decisions including the decision of the Division Bench of this Court in TCA.No.273 of 2012 dated 12.9.2012. 7. The explanation offered by the assessee did not find favour with the Assessing Officer, who rejected the same and confirmed the proposal in the said show cause notice and levied penalty to the tune of ₹ 54,53,840/- under Section 271(1)(c) of the Act. Aggrieved by that, the assessee preferred an appeal before the CIT(A), who, by order dated 28.11.2017, confirmed the order passed by the Assessing Officer. This order was challenged by the assessee before the Tribunal and by the impugned order, the Tribunal allowed the appeal filed by the assessee. Hence, the Revenue is befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. Though such a contention was raised, the Assessing Officer did not dwell into that aspect as it is expected of him to do. Therefore, the assessee raised such a plea before the CIT(A). Unfortunately, the CIT(A) took a narrow and pedantic view that the assessee did not file a copy of the penalty notice along with the grounds of appeal to substantiate their case. We fail to understand as to why the CIT(A) took such a stand and as the First Appellate Authority, he could have called for the files as well to verify the plea raised by the assessee that the penalty notice was defective. Therefore, to say the least, such an observation in the order passed by the CIT(A) and more particularly in paragraph 6.2 is perverse. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rightly held that it is nobody's case that the assessee concealed the allotment of stock appreciation rights or gain arising out of such appreciation. In fact, there had been a difference of opinion or difference in interpretation of the manner, in which, the assessee interpreted the returns. Therefore, when there were two opinions possible, it cannot be stated that the conduct of the assessee amounted to deliberate concealment of income with certain mala fide intentions. 12. Mrs.R.Hemalatha, learned Senior Standing Counsel for the appellant has pressed into service the decision of the Division Bench of the High Court of Delhi in the case of CIT Vs. Zoom Communication (P) Ltd. [reported in (2010) 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorrect computation given by the assessee. However, on facts, in the present case before us, we find that there had been two opinions or there had been difference of opinion between the assessee and the Assessing Officer. 14. Mrs.R.Hemalatha, learned Senior Standing Counsel for the appellant also relies upon the decision of the Division Bench of the High Court of Bombay in the case of Jivanlal and Sons Vs. ACIT [reported in (2019) 103 Taxmann.com 207]. 15. We are of the view that the said decision does not render any assistance to the case of the Revenue, because, on facts, the Court found that the Chartered Accountant of the assessee could not feign ignorance of Section 40(ii) of the Act, as he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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