TMI Blog2023 (5) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... RT] beneficial provision should be read liberally. The bench also noted that decision relied upon by the lower authority are having the different facts and are not applicable to the facts of this case. As regards the balance addition made on account of the meager amount and on account of difference of opinion only. As referring to case of CIT Vs. Reliance Petroproducts Private Limited [ 2010 (3) TMI 80 - SUPREME COURT] we vacate the levy of penalty u/s. 271(1)(c) of the Act - Appeal of the assessee is allowed. - ITA No. 126/JP/2023 - - - Dated:- 3-5-2023 - Shri Sandeep Gosain, JM And Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Smt. Suhani Meharwal (CA) For the Revenue : Smt Monisha Choudhary (Addl. CIT) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of Rs. 20,40,640/- as declared in the original return of income filed. The assessee also requested for the reasons for opening of the assessment u/s 148 through letter dated 02.01.2019. Accordingly, notice u/s 143(2) along with notice u/s 142(1) of the IT. Act was issued to the assessee on 07.01.2019 and copy of reasons was provided on 07.01.2019 to furnish submissions by 21.01.2019. The assessee furnished the required details on 23.01.2019. The assessment was completed on 11.11.2019 determining total income at Rs. 20,61,940/- [ the assessee has increased the returned income on account of STCG of Rs. 1,56,298/- ] by making addition of Rs. 21,300/- being the amount of income received from sale of penny stock. As the additions were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akh was within the 10%. tolerance band as provided by Finance Act, 2021. Facts on record and appellant's submission are perused. The appellant has not suo motto filed revised return rather he filed it in response to AO's notice u/s 148 of the Act. Further, there is no case regarding excess cash received over stamp duty valuation or sale deed consideration. The case is that the appellant declared Rs. 40 Lakh only as sale consideration whereas legal requirement was to declare the stamp duty value which was Rs. 43,12,517/- At the registry office the appellant pays stamp duty @ Rs. 43,12,517/- but in Income Tax Return he forgets declaring Rs. 43,12,517/- and declares Rs. 40,00,000/- only. This 'inadvertence' on the part of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istake, which had been inadvertently done by assessee in declaring the value u/s 50C for plot sold during the year. However, ld. AO initiated penalty proceedings u/s 271(1)(c) and imposed also. The penalty was levied upon the entire value of sale of shares amounting to Rs. 21300/-, which had also offered for tax to avoid litigation. The appeal is filed by raising single ground against the levy of penalty. Your honour, Ld. CIT(A) upheld the levy of penalty by passing an order, which is not the speaking order. He failed to deal with the arguments raised by appellant. He also failed to deal with the decisions relied upon by assessee. The ratio of order of CIT (A) is as under:- The appellant has not Suo moto filed revised return rather h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale consideration for assuming legal jurisdiction to levy penalty. For making addition no such duty is casted upon AO. But making addition and imposing penalty are different aspect and independent proceedings. The income presumed by fiction of law is not the real income unless otherwise prove by adducing additional evidences. For levying penalty income should be income as contemplated u/s 5 of the I.T Act, 1961. Here, I may rely upon: A. ACIT vs N. Meenakshi 319 ITR 262 (Chennai) held that addition made on value adopted by deputy registrar being the deemed value and even the addition is accepted by the assessee, it can not be said of filing of inaccurate particulars for levying penalty. It was held that assessee has not suppressed the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable since here assessee disclosed income prior to serving of reason by AO. 5) Your honour, the addition on account of sale of equity amounting to Rs 21300/- is by paying STT. It was done through registered stock broker. Purchases, holding and sales are done through proper channels. Nothing contrary was brought by AO. This meagre amount should not be treated to build up the capital advertently. Assessee accepted this meagre amount of addition as he thought that cost of litigation will be much more than cost of tax. Prayer Please delete the penalty. 6. The ld DR is heard who relied on the findings of the lower authorities and more particularly advanced the similar contentions as stated in the order of the ld. CIT(A). 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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