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TMI Blog2023 (12) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... otice to the assessee and then proceeded to impose the penalty by ignoring the fact that the assessee has made disclosure of income during survey and has also not contested the issue in appeal. AO has passed an order in a very cryptic manner. In our opinion, the addition is only on the basis of admission of the assessee and the AO nowhere demonstrated that the claim of the assessee was either found to be false either during assessment proceedings or during penalty proceedings In the present case, the assessee has fully disclosed the particulars of the capital gain and claimed the same as exempt u/s 10(38) of the Act and thus fully disclosed all the facts qua the gain on sale of shares. The case of the assessee is also supported by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Directorate of Income Tax (Investigation), Bhubaneswar, Odisha and as per survey report received from the Director of Income Tax (Inv.) , Unit-1(1), Bhubaneswar dated 10.06.2016, Shri Chetan Kumar Tekriwal , the Karta of HUF has taken accommodation entry of Long term capital gain under the guise of investing his undisclosed income in buying penny stock of CCL International Ltd. and thereby converting his undisclosed income as long term capital gain. The assessee received Rs. 52,51,973/- as the proceeds of bogus LTCG during the year. During the survey the assessee voluntarily disclosed the amount of Rs. 52,51,973/- as undisclosed income of the Karta of HUF. A penalty notice dated 4.1.2019 was to the assessee on 21.01.2019 and no one appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther we note that AO has passed an order in a very cryptic manner. In our opinion, the addition is only on the basis of admission of the assessee and the AO nowhere demonstrated that the claim of the assessee was either found to be false either during assessment proceedings or during penalty proceedings. The case of the assessee finds support from the decision of Co-ordinate Bench in the case of Robbs Traders Finance Pvt. Ltd. vs. ITO in ITA NO. 743/Kol/2022 wherein it was held as under: 9. We have duly gone through the facts of the present case. A perusal of the assessment order would reveal that ld. Assessing Officer has nowhere demonstrated as to how the loss claimed by the assessee is bogus. He only issued a show-cause notice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and challan copy is enclosed. (f) No appeal is filed. In addition, the assessee referred to various case laws. These documents have not been held as false either by the ld. Assessing Officer during the assessment proceeding or during penalty proceeding. Therefore, the assessee does not deserve to be visited with penalty. In the present case, the assessee has fully disclosed the particulars of the capital gain and claimed the same as exempt u/s 10(38) of the Act and thus fully disclosed all the facts qua the gain on sale of shares. The case of the assessee is also supported by the decision of Hon ble Apex Court in the case of CIT vs. Reliance Petroproducts (P.) Ltd [2010] 189 Taxman 322 (SC) in which the Apex Court has held that where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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