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TMI Blog2020 (7) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... er sources. The assessee for the year under consideration filed return of income u/s 139(1) declaring total income of Rs. 1,07,53,630/- which included Long Term Capital Gain of Rs. 94,72,909/- earned on sale of agricultural land which was jointly held in equal share with his brother Sunil Sharma. After processing the return, the AO issued notice under section 148. In the order framed under section 143(3) read with section 147, the AO made an addition on account of Capital Gains earned on sale of agricultural land. On the addition so made, AO also levied penalty under section 271(1)(c), which was confirmed by the ld. LD. CIT (A) and assessee is in further appeal before us. 3. It was argued by ld. A/R that any notice issued under section 274 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his court. The appeal is accordingly dismissed." The department has filed SLP in the Hon'ble Supreme Court which has been dismissed. Therefore, Hon'ble Supreme Court has approved the findings made by Hon'ble Karnataka High Court in the case of CIT vs. SSA's Emerald Meadows and CIT vs. Manjunatha Cotton & Ginning Factory & Others (2013) 359 ITR 565. Hon'ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory (2013) 359 ITR 565 (Karnataka) after referring to the decision of Hon'ble Supreme Court in the case of T. Ashok Pai, 292 ITR 11 held as under :- " ......Concealment, furnishing inaccurate particulars of income are different. Thus the Assessing Officer while issuing notice has to come to the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . With regard to the merits of the addition and the penalty imposed thereon, contention of the ld. A/R was that the inadvertent human error of taking wrong/in excess cost of acquisition while computing Long Term Capital Gain was bonafide and unintentional and committed by tax return preparer of counsel of assessee due to oversight only as he could not notice that the entire land was not sold but only a part of it was so sold and therefore the entire cost of acquisition of land was not to be taken and only proportionate cost is to be taken. 4. On the other hand, it was contended by ld. D/R that under the provisions of section 292B, mistake in the notice can be rectified. She further relied on the orders passed by the lower authorities. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filing return in compliance to notice u/s 148 corrected the mistake in computation of capital gain and filed return of income declaring total income of Rs. 1,11,69,992/- which included Long Term Capital Gain of Rs. 98,89,268/- in place of Rs. 94,72,909/- declared in original return. The ld. AO also completed assessment u/s 143(3) /147 on returned income filed in compliance to notice under section 148 but initiated penalty proceedings u/s 271(1)(c). The notice issued by the Assessing Officer under section 271(1)(c) of the Income Tax Act, 1961 is bad in law in as much as it did not specify in which limb of section 271(1)(c) of the Income Tax Act, 1961 the penalty proceedings has been initiated, i.e. whether for concealment of income or furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in case of CIT vs. SKY Auto Products Pvt. Ltd. (2004) 271 ITR 335 held that where the assessee, a new businessman claimed depreciation for the full year in the first year of starting production though he was entitled only to fractional depreciation, it was a case of bonafide mistake on the part of the assessee. Such a ground cannot be a good ground for imposition of penalty u/s 271(1)(c). 5.4. The Hon'ble Supreme Court in the case of M/s. K.C. Builders vs. ACIT (2004) 265 ITR 562 held that mere omission from the return of an item of receipt does neither amount to be concealment nor deliberate furnishing of inaccurate particulars of income unless and until there is some evidence to show or some circumstances found from which it can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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