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TMI Blog2024 (6) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... d computation. Thereafter the AO simply brought the said capital gain to tax and initiated the penalty proceedings u/s 271(1)(c ) without recording any satisfaction framing the charge whether the initiation of penalty proceedings was for concealment of income or for filing inaccurate particulars of income though in the notice issued u/s 271(1)(c) the AO stated that It appears that you have concealed the particular income . Thus it clear from the above that the AO was himself not sure as to the charge of penalty. In our opinion, the said approach of the AO in making assessment without framing the charges and issuing notice without being sure as to levy of penalty on particular charge is not permissible under the Act. AO has failed to demonst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on the ground that the assessee has claimed long term capital gain on sale of shares of M/s Quest Financial Services Ltd. to the tune of Rs. 6,70,390/- as exempt u/s 10(38) of the Act. In the assessment proceedings, the assessee offered the said amount of capital gain to tax by filing a revised computation which has been extracted by the AO in para 4 of the assessment order and finally in para 5, the AO noted that based on the said declarations the total income was assessed as under: Total Income (as per return) Rs. 2,40,630/- Add:- Declaration made by the assessee Rs. 6,70,390/- Assessed total income Rs. 9,11,020/- Thereafter the AO initiated pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing inaccurate particulars of income though in the notice issued u/s 271(1)(c) dated 18.12.2019 the AO stated that It appears that you have concealed the particular income . Thus it clear from the above that the AO was himself not sure as to the charge of penalty. In our opinion, the said approach of the AO in making assessment without framing the charges and issuing notice without being sure as to levy of penalty on particular charge is not permissible under the Act. This is undisputed that the assessee has disclosed all the particulars in the return of income qua long term capital gain and nothing has been concealed by the assessee. In our opinion, in such case, no penalty is leviable. The case of the assessee finds support from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeded 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. Further 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the loss voluntarily to avoid litigation and requested the Assessing Officer to not initiate penalty proceedings u/s 271(1)(c). (e) We paid the tax due 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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