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TMI Blog2023 (5) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 2. In this appeal, the assessee has raised following grounds: - "1. Ground 1: On the facts and in the circumstances of the case Ld. CIT(A) as well as ld. AO erred in imposing penalty of Rs. 54,879/- without establishing the actual concealment and in spite of making voluntary and bonafide disclosure which is grossly unjustified and liable to be quashed." 2. Ground assessee request you to add, alter, delete and modify any ground of appeal on or before the date of hearing of appeal." 3. Succinctly, the fact as culled out from the records is that the return of income in this case was e-filed on 29.11.2012 declaring total income of Rs. 18,84,340/-. The assessment was re-opened in this case vide notice u/s 148 dated 18.10.2018 was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the order of the assessing officer levying penalty assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds of the appeal so raised the relevant finding of the ld. CIT(A) is reiterated here in below : "The appellant along with a co-owner sold a property for Rs. 40,00,000/-. The Sub-registrar registered the property for Rs. 43,12,517/-. As the appellant was 50% owner, the AO brought Rs. 43,12,517-40,00,000 3,12,517/ 2= 1,56,298/- to the income of the appellant. The assessment was computed u/s 147/143(3) on 11.11.2019. The appellant accepted this addition. Further, the AO added Rs. 21,300/- received on sale of penny stock, Divine Multimedia (India) Ltd. The appellant accepted this addition also The AO passed pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said shares were made in ordinary course and hence the penalty should be dropped. Facts on record and appellant's submission are perused. The fact remains that the appellant has indulged in penny stock which is a colourable device. The assessment order is not challenged either. AO's action is therefore upheld. In sum, appellant's appeal is dismissed." 5. As the assessee not received any favour from the appeal filed before NFAC. The present appeal filed against the said order of the NFAC dated 28.02.2023 before this tribunal on the grounds as reiterated in para 2 above. The ld. AR appearing on behalf of the assessee has placed their written submission which is extracted in below; "Assessee has been filing return of income r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e retrospective application". Regarding addition on account of sale of shares in concerned, Ld. CIT (A) said that assessee even did not raise issue by filing of appeal against order u/s 143(3)/ 148 of the I.T Act, 1961. Your honour, assessee: - 1) Even without obtaining reasons for re-opening, Suo moto declared the stamp duty value as sale consideration, paid tax along with interest and filed ROI. (Copy of computation and ITR V are enclosed on page no.1-4 of Paper Book). I may rely upon the decision of Apex Court in case of Suresh Chand Mittal vs CIT, Hindustan Steel Ltd. vs state of Orissa 83 ITR 26 and K.C Builders vs ACIT 2004, 265 ITR 526. 2) Your honour, section 50 C of the I.T Act, 1961 provides the deeming fiction, where the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd (2014) TAXMANN.COM 382 Calcutta High Court F. Prakash Chand Nahar vs ITO (2007) 3) Your honour, Finance Act, 2021 provided a tolerance band of 10%. It is now law that where difference within 10% in actual sale consideration and value u/s 50C than the difference will be ignored. This is the beneficial provision brought in statue to avoid reasonable hardship. Your honour, as per ratio of Apex Court judgement in case of CIT vs Vatika Township the lordship has laid down the principle that the provisions which is inserted to avoid hardship and beneficial to assessee are in the nature of benevelount to assessee and derificatory in nature and apply retrospectively. 4) Cases relied upon by AO are not applied here a) Dharmendra Textile M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance in the change in price range the assessee should get the benefit at least in the levy of penalty based on the decision of apex court in the case of CIT Vs. Vatika Township beneficial provision should be read liberally. The bench also noted that decision relied upon by the lower authority are having the different facts and are not applicable to the facts of this case. As regards the balance addition of Rs. 21,300/- this has been made on account of the meager amount and on account of difference of opinion only. Based on the various decision cited by the ld. AR of the assessee the decision in the case of apex court in the case of CIT Vs. Reliance Petroproducts Private Limited we vacate the levy of penalty u/s. 271(1)(c) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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