TMI Blog2012 (7) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... acts along with the return of income and the mistake being technical or venial in nature, assessee is not liable to be visited with penalty u/s 271(1)(c) - penalty deleted - revenue’s appeal is dismissed. - ITA No. 2343/Del/11 - - - Dated:- 8-6-2011 - SHRI R.P. TOLANI AND SHRI T.S. KAPOOR JJ. Appellant by : Mrs. Anusha Khurana Sr. DR Respondent by : Shri O.P. Sapra Adv. O R D E R PER R.P. TOLANI, J.M:: This is revenue s appeal against CIT(A) s order dated 1-3-2011, challenging the deletion of penalty levied u/s 271(1)(c) of the Incometax Act, 1961, relating to A.Y. 2007-08. 2. Following grounds are raised: On the facts and in the circumstances of the case, the Ld. CIT(A) erred on facts and in law in dele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he return of income: Note : As per the assessment order passed u/s 143(3) for the AY 2001- 02, the Assessing Officer has reduced the business loss depreciation as follows: Business loss : 1930914 Depreciation : 2805083 4735997 Against this an appeal has been filed before the CIT(A), which is still pending. The assessee has claimed carry forward of losses as per the return of income flied. Effect of additions confirmed, if any, in the appeal will be taken on disposal of final appeal. 2. The current year business profit has been set off against the business loss of the AY 2001-02, short term capital loss Rs. 93,73,843/- along with brought forward losses of earlier years as menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 3,52,889/-. The assessment was framed accordingly. Penalty proceedings u/s 271(1)(c) were initiated qua assessee s withdrawn claim on short term capital gains and the additions on account of bad debts. 3.3. Assessee contended that: (i) it was running into losses and any benefit of the impugned short term capital loss was neither claimed in this year or in subsequent years. Therefore, there was no intention to evade or avoid the tax. (ii) Along with return of income all the relevant details were filed along with annexures and accounts, therefore, the assessee has disclosed all the material facts in respect of short term capital loss, after detection of the mistake, assessee immediately filed revised computation during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re furnished by the assessee along with the return of income. Consequently, Hon ble Supreme Court judgment in the case of Reliance Petro Products Pvt. Ltd. 230 CTR 320 was applicable in favour of assessee. (ii) Primary facts and particulars were disclosed in respect of short term capital loss; the claim was withdrawn by the assessee before assessment by filing a revised computation, which has been considered by AO. Reliance was placed on CIT Vs. Atul Mohan Bindal (2009) 225 CTR (SC) 248 for the proposition that if the issue involved was debatable one, it cannot be said that assessee furnished inaccurate e particulars or concealed any particulars of income. Further reliance was placed on Hon ble Delhi High Court judgment in the case of CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notes, audited statements etc. In view thereof, it cannot be held that the assessee furnished any inaccurate particulars or concealed any particulars. (iv) Hon ble Supreme Court s judgment in the case of Reliance Petro Products (supra), has squarely held that if the primary facts are disclosed along with the return of income, no penalty u/s 271(1)(c) can be levied. No tax advantage has been derived either in the original or subsequent revised computation. Short term capital loss and the claim was initially made on the basis of professional advice and subsequently withdrawn when the mistake was understood by the assessee. AO s finding that the same was withdrawn after detection is not correct. Reliance is placed on CIT Vs. Binod Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e belief that the amounts having become irrevocable same were allowable as bad debts on write off. All the facts indicate that the assessee filed necessary primary particulars along with return of income. In this eventuality the Hon ble Supreme Court judgment in the case of Reliance Petro Productgs is squarely applicable to assessee s case. A revised computation to withdraw short term capital loss claim to be carried forward which at the same time increased unabsorbed depreciation cannot be held to be liable for penalty u/s 271(1)(c). In view thereof, we are unable to agree with learned DR that ratio of judgment in the case of Zoom Communication (supra) is applicable to assessee s case, as the claims cannot be held to be ex facie bogus. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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