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TMI Blog2023 (8) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case. Hence, we direct the Assessing Officer to delete the penalty levied u/s 271(1)(c) . As the assessee in the return of income in response to the notice u/s 148 has offered capital gain and paid tax, thus grounds of appeals raised by the assessee are allowed. - Shri Pawan Singh, Judicial Member And Dr Arjun Lal Saini, Accountant Member For the Assessee : Written Submission For the Revenue : Shri Vinod Kumar, Sr-DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of Ld. Commissioner of Income-tax (Appeals), Valsad [for short to as Ld. CIT(A) ] dated 23.03.2018 in confirming the penalty levied by Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the assessee on 28.10.2015. In response to notice issued under section 148, the assessee filed his return of income declaring income at Rs. 15,30,788/-. His assessment was completed under section 143(3)/147 on 28.102015, in accepting returned filed in response to notice under section 148 of the Act. The Assessing Officer initiated penalty under section 271(1)(c) by taking view that assessee concealed income while filing his return of income and levied penalty of Rs. 2,61,800/-. On appeal before ld CIT(A), the assessee in his submissions stated that there was no variation in the return of income filed in response to notice issued under section 148 of the Act, while passing assessment order, the Assessing Officer initiated penalty. The As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that assessment order under section 143(3) r.w.s 147 was completed on 28.10.2015. The assessing officer while passing the re-assessment accepted return income, filed in response to notice issued under section 148 of the Act. Meaning thereby the assessing officer accepted return of income Rs. 15,30,788/- without variation. 5. We find that Assessing Officer, in para-4 of assessment order, recorded that assessee has purchased agricultural land on 30.10.2002 for a consideration of Rs. 37,500/-. The land in question was converted into a non-agricultural land on 01.12.2003. During the financial year, the assessee sold non-agricultural land at sale deed value of Rs. 11.61,000/- and stamp valuation authority valued the land for the purpose of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his written submission, assessee relied on various case law that there was no mens rea in his action while filing original return of income as well as returned in response to notice under section 148. Once his revised assessment was accepted, there is no question on levying penalty. The Ld. CIT(A) after considering the written submission of assessee held that assessee is claiming that there was no wilful intention of concealment of income, however, assessee in the original return of income failed to disclose LTCG and the return was not revised until notice issued under section 148 was not issued and served upon the assessee. The ratio of decision of Hon'ble Apex Court in the case of MAK Data (P.) Ltd. Vs. CIT (2013) 358 ITR 593 (SC) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , such returned filed is treated as returned filed under section 139. We find that the ratio of decision of Hon'ble jurisdictional High Court in the case of Kirit Dahyabhai Patel (supra) and is squarely applicable on the facts of the present case. Hence, we direct the Assessing Officer to delete the penalty levied under section 271(1)(c) vide order dated 29.04.2016. 8. The case law relied by Ld. CIT(A) in the case of MAK Data (P.) Ltd. (supra) in his order is not applicable on the facts of the present case. In the said case, when the Assessing Officer called upon the assessee to produce the evidence as to the nature and source of the amount received as share capital, the creditworthiness of the applicants and the genuineness of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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