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TMI Blog2024 (12) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Representatives of both sides and case records perused. 3. The background facts of the case are such that the assessee filed return of AY 2010-11 on 12.12.2011 declaring a total income of Rs. 1,00,000/- from rent of tractor and agricultural income of Rs. 75,000/-. The case was selected for scrutiny vide notice dated 13.08.2012/05.09.2012 u/s 143(2) and the AO ultimately passed assessment-order dated 25.03.2013 determining total income at Rs. 4,53,11,710/- after making additions of (i) Rs. 3,96,04,934/- on account of undisclosed long-term capital gain from sale of properties, (ii) Rs. 1,06,772/- on account of undisclosed interest income and (ii) Rs. 55,00,000/- on account of unexplained cash-credit. The AO, however, accepted agric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additions of (i) Rs. 6,26,256/- on account of long-term capital gain and (ii) Rs. 1,06,772/- on account of interest income, surviving even after ITAT's order, should also be deleted on merit. 6. So far as the first part of assessee's grievance is concerned, we agree that the penalty u/s 271(1)(c) is not sustainable qua the relief already granted by ITAT in quantum-proceeding because the very basis of imposition of penalty has collapsed to that extent. Therefore, the AO is directed to delete penalty to that extent. This deletion is, however, subject to the rider that if the revenue is in further appeal before High Court against the quantum deleted by ITAT and the ITAT's order is reversed, the revenue shall have power to revive the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (+) the difference of Rs. 2,40,998/- relatable to estimation difference of fair market value as on 01.04.1981, represents the amount of impugned addition of Rs. 6,26,256/- surviving in the end. Having explained this factual matrix, Ld. AR submitted that the assessee has himself offered capital gain in revised return and also paid tax suo motu although the revised return was not within statutory time. Further, the difference of Rs. 2,40,998/- is an estimation difference only. Therefore, there is no concealment by assessee and the penalty should not have been imposed. (ii) Per contra, Ld. DR for revenue strongly opposed the submissions of Ld. AR. He submitted that it is an admitted fact that the revised return was filed after expiry of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the working of capital gain that the assessee came out with filing of revised return on 07.11.2012 and offer resultant capital gain to department. Therefore, the assessee has not made any voluntary disclosure, in fact the assessee concealed taxable gain in original return. Ld. DR further relied upon certain decisions to contend that the Hon'ble Courts have upheld imposition of penalty in such a situation. The most important judgement relied by Ld. DR is CIT Vs. NG Technologies Ltd. (2015) 57 Taxmann.com 389 (Delhi) wherein it was held thus: "20. Therefore, it is clear to us that the assessee had not filed revised return voluntarily but had filed the revised return after the Assessing Officer confronted the assessee and they were asked to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fact that the department received information of sale of properties by assessee from AIR and when the AO questioned the assessee for the transactions reported in AIR vide order-sheet dated 12.09.2012, only thereafter the assessee filed a revised return declaring capital gain and paying tax thereon. From these facts, one can only find that the assessee has not voluntarily filed revised return but had filed the same only after the AO confronted the assessee. Therefore, the assessee's case is straightaway covered by decision of Hon'ble Delhi High Court in CIT Vs. NG Technologies Ltd. (supra) as approved by Hon'ble Supreme Court by rejecting asessee's SLP. In fact, the assessee's case is more worse for the reason that the revised return file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment-order that the assessee received sale-proceeds of immovable properties through cheques in his bank account (Para 2.5 of assessment-order) and the impugned interest income is also from bank accounts (Para 3.1 of assessment-order). Therefore, it can be discerned that when the AO, vide order-sheet entry dated 12.09.2012, questioned the assessee to explain the transactions of sale of immovable properties, the assessee had to declare not only capital gain but also interest from banks in the revised return. Therefore, the plea of Ld. AR that the declaration of interest income was voluntary is not acceptable and the same is rejected. Consequently, the imposition of penalty qua the interest income is hereby upheld. 8. In view of above d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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