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2010 (8) TMI 457 - ITAT, DELHIPenalty u/s 271(1)(c) - concealment of income - Held that: Though, there was a loss as per book value, the assessee has disclosed in the audit report that there was a short term capital gain on the basis of WDV as per Income-tax Act. In other words, as against the loss on sale of assets recognized in the books of accounts, the assessee worked out the short term capital gain voluntarily after adopting the WDV of assets as per Income-tax Act, which was lower than book value recorded in the books. Therefore, the fact that there would be a short term capital gain as against loss shown in the books has been duly disclosed by the assessee in the audit report itself, and thus, it is not a case where assessee has concealed any material fact or the factual opinion relating to the transfer of fixed assets by assessee company to its holding company. The assessee has claimed the amount as exempted as per advise given by the Tax Consultant and that could be a bonafide basis on which the claim was made. The assessee was totally dependent upon his tax consultant and the accountant, and on the basis that the assessee made the claim in the return of income. Therefore, it is a case where a bonafide claim was made on the basis of advise of accountant or tax consultant, which would absolve the assessee from penalty leviable u/s 271(1)(c) of the Act. - penalty not to be levied.
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