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TMI Blog2008 (7) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... . 353 to 356 of 2008 - - - Dated:- 22-7-2008 - SATISH KUMAR MITTAL and AUGUSTINE GEORGE MASIH JJ. Sanjiv Kaushik for the appellant. JUDGMENT The judgment of the court was delivered by SATISH KUMAR MITTAL J. - This order shall dispose of I. T. A. Nos. 353, 354, 355 and 356 of 2008. The Revenue has filed these four appeals under section 260A of the Income-tax Act (hereinafter referred to as "the Act") against the common order dated November 24, 2006, passed by the Income-tax Appellate Tribunal, Delhi Bench "I", New Delhi (hereinafter referred to as "the Tribunal") in I. T. A. Nos. 908/Delhi/2005, 909/Delhi/2005, 910/Delhi/2005 and 911/Delhi/2005 in the case of four different assessees for the assessment year 1998-99. In all these appeals, a common issue regarding imposition of penalty under section 271(1)(c) of the Act has been raised in the case of the assessees, who are of the same family. The facts and circumstances in all these appeals are identical, therefore, we are taking up the facts from I. T. A. No. 353 of 2008. 2. In this case, the assessee derived income from manufacturing of cotton yarn and cotton waste. The assessee filed a return of income on Octobe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional income equivalent to entire amount of sale proceeds of shares was declared only to buy peace of mind and to avoid litigation with the Revenue and no material was found by the Assessing Officer during the assessment to show that the stand of the assessee, reflected by the transaction resulting in long-term capital gain was either non-genuine or bogus. 4. Against the aforesaid order of the Commissioner of Income-tax (Appeals), the Revenue filed an appeal before the Tribunal, who, vide its order dated November 24, 2006, dismissed the same, while observing as under: "We have considered the rival submissions carefully. In this case the income that has been held to be concealed by the assessee is the sale proceeds of shares sold by the assessee. Admittedly, the assessee declared the capital gain on sale of such shares in the original return of income. In the subsequent return filed in pursuance of notice under section 148 of the Act, the assessee revised its claim in this regard and instead of offering for tax the amount of capital gain, he offered the entire sale proceeds as income. Such additional income offered has since been assessed to tax. Therefore, an important fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice under section 148, it cannot be ipso facto inferred that the penal provisions of section 271(1) (c) are attracted. In order to apply the penal provisions of section 271(1) (c) it is to be necessarily inferred that there is positive act of concealment of income or furnishing of inaccurate particulars of such income by the assessee. In the instant case, it is clearly brought out by the Commissioner of Income-tax (Appeals) that no chance has been given to the assessee to examine the broker regarding his denials. The Commissioner of Income-tax (Appeals) has also referred to a communication of the DDIT (Inv.) dated March 11, 2003, addressed to the Commissioner of Income-tax, Karnal, wherein it is stated that the feasibility to produce the broker and cross-examination was difficult. Therefore, under such circumstances, it cannot be said that the Department has discharged its burden of proving concealment. The Department had simply rested its conclusion on the act of the assessee of having offered additional income in the return filed in response to notice under section 148 of the Act. As noted earlier, the additional income so offered by the assessee was done in good faith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. 7. After hearing the learned counsel for the appellant, we do not find any merit in this appeal. Undisputedly, the assessee filed the return of income declaring its total income at Rs. 47,05,230, which, inter alia, included long-term capital gain on sale of shares amounting to Rs. 29,74,951. The return was processed in terms of section 143(1) (a) of the Act on March 15, 1999. Subsequently, on the basis of some information with regard to sale proceeds of the shares amounting to Rs. 32,40,385 on which the capital gain was declared at Rs. 29,74,951 by the assessee in the original return, a notice under section 148 of the Act was issued. Pursuant to the said notice, the assessee filed the revised return of income showing higher income. The said return of income was accompanied by a note in which the assessee submitted that he surrendered the entire amount of sale proceeds of shares to buy peace of mind and to avoid hazards of litigation and also to save himself from any penal action. Later on, on the basis of revised return, the assessment was framed and the return submitted by the assessee was regularized as it is. During the course of assessment, the aforesaid explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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