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TMI Blog2023 (9) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... w have been raised in this appeal for consideration: (A) Whether on the facts and circumstances of the case and in law, the Appellate Tribunal is justified in upholding the decision of the Ld. CIT(A) holding that no penalty is imposable in respect of inadvertent and silly mistake without appreciating the fact that the same cannot be treated as inadvertent and silly mistake as Return of Income of the assessee was filed by a renowned Chartered Accountant and the same could not be filed without a purchase and sale deed wherein such huge transaction is involved? (B) Whether on the facts and circumstances of the case and in law, the Appellate Tribunal is justified in upholding the decision of the Ld. CIT(A) wherein the Ld. CIT(A) relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident that the revised computation filed by the assessee during the course of assessment proceedings was not her own, but when the questionnaire was issued to furnish the purchase and sales deeds of the property, then the assessee realized that the department has detected that she has made a wrong claim of capital loss in her return of income and she does not have any option but to show the correct capital gain for taxation in her hands for the A.Y. 2014- 2015 and accordingly furnished a revised computation of total income. .... ... It is hard to believe that both the Chartered Accountants have advised the assessee to file the return of income without proper verification of the supporting documents in respect of the loss claimed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown in the return of income filed by the assessee on 03/09/2014. It is, therefore, proved beyond doubt that the assessee has made wrong claim of long term capital loss in her return of income filed intentionally. ... .... The assessee is, therefore, liable for penalty u/s. 271(1)(c) of the Income-Tax Act, 1961. I therefore, levy a minimum penalty of Rs. 1,87,17,287/- as against the maximum penalty leviable at Rs. 5,61,51,861/-." 3.2 The assessee carried the order in appeal before the CIT(A). Before the CIT(A), the submission of the assessee was that being not educated, she relied on the Chartered Accountant firm who prepared the computation of total income and indexation made under the head 'Capital Gain' with loss of Rs. 7,82,30,784/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn filed through a C.A. firm M/s Prakash Thakkar and Co., Vadodara. In this regard, an affidavit dated 19.09.2016 has been filed before the AO. On perusal of the original working of long term capital gain, I find that the entire sale consideration of 5 properties at Rs. 9,95,43,700/- was considered and from the same, 95% was treated as cost of acquisition resulting into loss. Undisputedly, the share of appellant in the property sold by her father was only 5%, but by mistake in the absence of purchase and sale deeds, the entire sale consideration was taken into computation of long term capital gains. Since both the figures of sale consideration and cost of acquisition were taken incorrectly, the mistake appears to be inadvertent Moreove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urning capital loss. Therefore, reduction in capital loss deserves to be ignored while imposing penalty. The AO is directed accordingly. 4.3 Undoubtedly, the appellant has paid advance tax of Rs. 13,65,000/- and since there was no other income, the appellant was aware about the tax liability on long term capital gains to that extent. However, the appellant has claimed entire amount as refund in the return of income filed on 03.09.2014 and hence this act of appellant certainly renders herself liable for penalty. Moreover, the revised computation of long-term capital gain was filed after issuance of three notices dated 28/08/2015, 02/05/2016 and 24/06/2016 with specific queries and hence the same cannot be considered as a voluntary act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vations made by ld. CIT(A) while allowing the appeal of the assessee. From the facts placed on record, in our considered view, it is a case where apparently a bona fide mistake was made by the assessee owing to lack of documents at the time of filing of return of income. Accordingly, looking into the facts in the instant case, we find no infirmity in the order of ld. CIT(A) and the appeal of the Department is hereby dismissed." 6. Perusal of the orders indicate that the CIT(A) and the Tribunal concurrently held that apparently there was a bona fide mistake made by the assessee owing to lack of documents at the time of filing of return of income. We find that the AO as rightly held by the CIT(A) and ITAT ought to have accepted the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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