9911796707
TMI Blog2012 (7) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... arried out on that plot of land. During assessment year 2001-02 half portion of that land was sold to one M/s Alkuresh Land Trading Corporation for Rs.15,30,650/-. In the return of income for assessment year 2000-01 the income from long term capital was shown and deduction u/s 54EB was also claimed. The remaining half portion of the land was sold to the same party during the year under appeal for Rs.15,30,650/-. The capital gain or loss on the sale of this half portion of the land at Rakhial was not shown in the return of income during the assessment proceedings. The A.O. found that certain credits were appearing in the bank account of the assessee to the tune of Rs.15,30,650/-. On enquiry the assessee admitted that the credits in his bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded by the Assessing Officer in the penalty order, then the penalty cannot be sustained. ii) Addition made in the assessment does not automatically tantamount to concealing of income or furnishing inaccurate particulars of income as held in various decisions of Tribunals of Mumbai, Pune, Delhi. iii) The appellant was under the bonafide belief that the capital loss of Rs.5775/- on account of sale of portion of land at Rakhial in the previous year relevant to A.Y. 2002-03 is not allowed to be set off against any other head of income, therefore, the said loss was not claimed in the return of income for A.Y. 2002-03. iv) If the appellant has intentions otherwise, then the appellant would have not shown the capital gain in the return of inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it as a business income against which the assessee has gone to Hon'ble High Court wherein assessee's appeal has been admitted on substantial question of law by the Hon'ble High Court to decide whether it should be a capital gain or a business income. Thus, the assessee's argument was that since the issue is debatable, no penalty can be levied. For making this submission reliance was placed on the decision of Hon'ble ITAT, Ahmedabad in the case of Rupam Mercantiles Ltd. vs. DCIT [2004] 91 ITD 237 (AHD) (TM). Concluding his argument ld. counsel of the assessee submitted that the orders of lower authorities levying/confirming the penalty u/s 271(1)(C) may kindly be set aside and the penalty imposed u/s 271(1)(c) may kindly be deleted. 4. Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat High Court in this case, the penalty is not leviable as the issue is debatable following the ratio as laid down in the decision of Hon'ble ITAT in the case of Rupam Mercantiles (supra), the submission of ld. D.R. was that this decision of Hon'ble ITAT, Ahmedabad was considered by Hon'ble ITAT, Delhi Bench in the case of Khanna & Annadhannam reported in [2011] 48 SOT 120 and it was held that the third party decision in the case of Rupam Mercantiles (supra) does not lay a general proposition of law and this call is to be taken in the factual peculiarities of a case. Therefore, in every case it has to be decided whether the facts are such that the issue can be called debatable or not. Hence, the decision of Rupam Mercantiles (supra) c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the year under appeal, the full facts would not have come to light and therefore, the facts of both the years are not comparable and assessee cannot take help from the fact that no penalty was even initiated during the previous year. As full facts were not declared by the assessee while filing his return of income for the year under appeal, the ratio as laid down in the case of Reliance Petroproducts (supra) is not applicable to the facts of this case. As far as the reliance on the case of New Sarathia Engineering (supra) is concerned, for the proposition that unless the A.O. specifically mentions in his penalty order whether penalty has been imposed for concealment of income or for filing of inaccurate particulars of income, penalty u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table one and therefore, penalty for concealment cannot be imposed in view of Rupam Mercantiles (supra) we agree with the argument advanced by ld. D.R. that in view of the decision of Hon'ble ITAT, Delhi Bench in the case of Khanna & Annadhannam (supra) the decision of ITAT, Ahmedabad in the case of Rupam Mercantiles (supra) does not lay a general proposition of law and therefore, in every case it has to be decided whether the facts are such that the issue can be called debatable or not. In the present case, in the quantum appeal ld. CIT(A), confirming the action of the A.O. has observed as under:- "It is quite intriguing to note that the appellant should not have voluntarily disclosed the said transaction in question in the return of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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