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TMI Blog2022 (2) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... which is in relation to the order of the Ld. CIT(A) it was decided by the tribunal that the gain which is arising out of the SSNNL bond is capital gain and not interest on securities. Therefore, as contended by AR of the assessee that when the tribunal has already contended that the gain arising from the SSNNL bond is chargeable to capital gain only then the issue in the penalty proceeding is only disallowance of claim of the assessee and the case of the assessee is squarely covered with the decision of the Hon ble Supreme Court in the case of CIT Vs. Reliance Petro Products Ltd [ 2010 (3) TMI 80 - SUPREME COURT] We find force in the argument of AR of the assessee that considering the overall facts, at the best, the claim of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the lead case of Shri Maulik Manilal Patel revenue has taken up the following grounds: i) The Ld.CIT(A) has erred in law on facts in deleting the penalty levied of ₹ 84,11,393/- u/s. 271(1)(c) of the Act. ii) It is, therefore, prayed that the order of the Ld. Commissioner of Income (Appeals) may be set aside and that of the Assessing Officer be restored. iii) The appellant prays for leave, to amend or alter any ground or add a new ground which be necessary. 4. The facts of the assessee s case as sketched from the assessment order are that for the year under consideration the assessee has claimed long term capital gain of ₹ 1,85,60,000/- under the belief that the Sardar Sarovar and Narmada Nigam Limited (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of section 10(38) and hold that the gain is chargeable to tax and thus, the same was added in the income of the assessee. For this addition the assessing officer mentioned in his order that Penalty proceedings are initiated on this issue for concealment / furnishing of inaccurate particulars of income, which came to be confirmed by the assessing officer vide order dated 28.08.2017 levying penalty of ₹ 84,11,393/- being 200 % of tax sought to be avoided. The observation of the assessing is extracted here in below for the sake of brevity of the facts: Considering the above fact and circumstances of the case, I am satisfied that this is a fit case for levy of penalty u/s. 271(1)(c) of the I. T. Act. Therefore, by virtue of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT(A) following the contention of the assessee that the assessee has not furnished inaccurate particulars of income and relying on the decision of Hon ble Supreme Court in the case of CIT Vs. Reliance Petro Products Ltd. reported in 322 ITR 158 deleted the levy of penalty and granted the relief based on the finding given in the order. The relevant finding of the CIT(A) is extracted here in below for the sake of convenience: ..the question is has there been any concealment of income or furnishing of inaccurate particulars of income by the appellant so as to attract penalty u/s. 271(1)(c) of the Act? I find that the appellant presented all the facts in his return of income and all the facts and figures were also before the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and is deleted and the ground of appeal is allowed. 6. Aggrieved from the order of the Commissioner of Income Tax, Appeals, Gandhinagar department has filed this appeal. 7. The learned DR has vehemently argued in detailed raising various contentions of the assessing officer as well as contentions not considered by the Ld CIT(A). The main contention repeatedly argued by the learned DR is that the assessee has wrongly claimed the income as exempt income and assessee did not come forward voluntarily for offering the income on account of wrong claimed by it. It was only first detected by the Assessing Officer as mentioned in the assessment order. He has further argued that considering that fact the view of the assessing officer is cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y offered as capital gain and claimed as exempt and the contention of the department is that, this claim made u/s. 10(38) is not allowable. Thus, so far as income is considered it remain same and it is mere disallowance of claim only. This itself clear that there is neither concealment of income nor furnishing of any inaccurate particulars of income so far determination of income is concerned. He has further stated that there is no other income which is added and not disclosed in the computation of income already placed on record. The mere disallowance of claim only penalty cannot be levied as decided by the Hon ble Supreme Court in the case of CIT Vs. Reliance Petro Products Ltd. The ld. AR vehemently supported the order of the ld. CIT-A. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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