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TMI Blog2019 (12) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer while reversing the order of the Tribunal, by order dated 29/11/2010; and that the impugned penalty order under section 158BFA(2) of the Act was passed by the learned Assessing Officer on 15/5/2011. Facts narrated above are identical to the facts involved in the case of Cellphone Credit [2019 (5) TMI 1500 - ITAT DELHI] and Intel Invofin (supra) wherein the Tribunal while placing reliance on the decision in the case of Aravind Kumar Jain (supra) held that the penalty order that was passed on 19/5/2011 as against the order of the Tribunal on 12/10/2006 was barred by limitation in terms of provisions under section 158BFA(3)(c) of the Act. The penalty levied by the learned Assessing Officer under section 158BFA(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led M/s SRU knitters Ltd, which were acquired in the earlier years. The return of income tax for the assessment year 1999-2000 was not filed by the assessee due to nonreceipt of certain documents in support of the transfer of shares, but the said return of income for 1999-2000 was filed on 31/3/2000. 3. There was a search in the premises of Shyam group of companies on 13/01/2000 wherein various documents including the provisional financial statements of the assessee for the year ended on 31/3/1999 were found by the search party and in such financial statements gains arising on transfer of shares were duly reflected. 4. Though such shares were acquired in the earlier years, those were duly shown in the audited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t did not have any intention to conceal the said capital gain for the purpose of taxation and had disclosed the investment in its final statements and had also filed return of income, though belatedly, there was no need to levy penalty. 7. When the revenue preferred appeal to the Tribunal challenging the deletion of the penalty, a coordinate Bench of this Tribunal by order dated 20/08/2015 set aside the issue to the file of the Ld. CIT(A) for fresh adjudication on two issues, namely, the issue of applicability of the second proviso to section 158BFA(2) of the Act and the impact of dismissal of SLP by the Hon ble Supreme Court. 8. In the set aside proceedings, Ld. CIT(A) considered the aspects that were referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld happen is that a cause could be decided on merits and because of the delay of one month occurred in preferring the appeal, no prejudice is caused to the Revenue. It is the settled principle of law that when the technicalities are pitted against the delivery of substantial Justice, the former must give way to the letter. With this view of the matter we are inclined to condone the delay and proceed to hear the issue on merits. 11. Contention of the Ld. AR is twofold. Firstly he contends that according to the law of limitation prescribed under section 158BFA(3) (c) of the Act, no order imposing penalty under section 158BFA of the Act shall be passed after the expiry of the financial year in which the proceedings, in the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditions made by the learned Assessing Officer and, therefore, it cannot be said that the levy of penalty is barred by limitation. He further submitted that the Hon ble High Court held that on account of non-filing of return before the due date prescribed in section 139(1) of the Act, the gains arising on transfer of shares have to be treated as undisclosed income and such a finding of the Hon ble High Court was not disturbed by the Hon ble Supreme Court since the SLP was dismissed. He, therefore, submits that no penalty could be levied on the facts and circumstances of the case. 14. We have gone through the record in the light of the submissions made on either side. There is no dispute as to the facts involved in this matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of shares have to be treated as undisclosed income. It is not in dispute that the capital gains accrued to the assessee were disclosed in the financial statements of the assessee and also in the belatedly filed return of income. Ld. AR argues that this particular fact rules out any intention on the part of the assessee to conceal the capital gain could be inferred and since the levy of penalty is not automatic, learned Assessing Officer should have taken a pragmatic view and not levied penalty. 17. On a careful consideration of the matter, we find some force in the argument of the Ld. AR that the penalty levied by the learned Assessing Officer under section 158BFA(2) of the Act cannot be sustained because the assessee does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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