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TMI Blog2018 (6) TMI 1676X X X X Extracts X X X X X X X X Extracts X X X X ..... lty levied by the AO and confirmed by the learned CIT (A) is not sustainable. Hence, the ground of appeal of the assessee is allowed. - I.T.A. No. 197/Ahd/2017 - - - Dated:- 29-6-2018 - SHRI WASEEM AHMED, ACCOUNTANT MEMBER And SHRI MAHAVIR PRASAD, JUDICIAL MEMBER For the Appellant : Shri S. N. Divatia, A.R. For the Respondent : Shri Uma Shankar Prasad, Sr. D.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the assessee against the appellate order of the Commissioner of Income Tax(Appeals)-10, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A)-10/ACIT.Cir-2(2)/721/14-15 dated 25/10/2016 arising in the penalty order passed under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 8,19,964/- and thereby levying penalty of ₹ 5,42,107/-. 3.1 The ld. AO has grievously erred, in not appreciating that the appellant had voluntarily and before detection offered long term capital gain so that there was no default u/s.271(1)(c). It is therefore prayed that the penalty of ₹ 5,42,107/- made by the AO should be deleted. 3. The assessee has challenged the imposition of the penalty levied u/s 271(1)(c) of the Act. 4. Briefly stated facts are that the assessee in the present case is an individual and deriving her income from remuneration as director in Johri Sons Jewellers Pvt. Ltd. as well as income from other sources. The assessee during the year has sold a property for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income. Therefore, the penalty levied by the AO is not sustainable. There was not deliberate or willful act on the part of the assessee to conceal the capital gain. It was also claimed that the assessee was not aware of the provisions of the Act for treating the stamp value as sale consideration. The assessee was of the view that she had sold the property for ₹ 25,00,000/- and capital gain needs to be worked out by sale consideration of ₹ 25,00,000/- only. The assessee was desirous of investing the sale consideration of ₹ 25,00,000/- in the bonds eligible for deduction/exemption u/s 54EC of the Act. Therefore, same was not disclosed in the income tax return. The assessee immediately upon receipt of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t given any evidences whatsoever in support of its contention that the penalty has been levied on both the counts. Moreover, the AO has levied the penalty only on one count i.e. concealment of income. Therefore, the penalty has been levied by the AO only on account of concealment of income. The AO has levied penalty for concealment of income on account of not offering the capital gains of ₹ 8,19,964/- and the contract receipt of ₹ 8,250/- whereas the penalty has been levied for filing inaccurate particulars of income on ₹ 19,89,249/-being the difference between the stamp duty valuation and the sales consideration. Since the penalty has been deleted in this order on account of 50C valuation and contract receipts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 271(1)(c) of the Act without mentioning any specific charge. As such the AO in Para No.4 has drawn its conclusion by levying both the charges i.e. concealment of income and inaccurate particulars of income. Accordingly, the learned AR prayed that penalty without mentioning the specific charge cannot be levied to the assessee. On the other hand, learned DR before us submitted that the assessee cannot be absolved from the penalty even the AO has levied the penalty under both the charges in his penalty order. The learned DR vehemently supported the order of Authorities below. 6. We have heard the rival contentions and perused the materials available on record. From the preceding discussion, we note that the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy of penalty is sustained in view of the fact that the assessee had concealed the particulars of income. Thus insofar as final order of penalty was concerned, the Assessing Officer was clear and penalty was imposed for concealing particulars of income. In light of this, we may peruse the decision of this Court in case of Manu Engineering Works (supra). In the said decision, the Division Bench came to the conclusion that language of and/or may be proper in issuing a notice for penalty, but it was incumbent upon the Assessing Authority to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by them. If no such clear cut finding is re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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