TMI Blog2012 (8) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 271 (1) ( c ) is not warranted and farfetched - in favour of assessee. - ITA No.375/Ahd/2010 - - - Dated:- 15-6-2012 - SHRI G. C. GUPTA, AND SHRI A. MOHAN ALANKAMONY, JJ. Appellant by Shri S. N. Divatia, AR Respondent by Shri Rahul Kumar, Sr. DR O R D E R PER A. MOHAN ALANKAMONY : This appeal of the assessee firm is directed against the order of the Ld.CIT (A)-V, Baroda in Appeal No. CAB(A)/V/14/09-10 dated 30.11.2009 for the assessment year 2001-02 [u/s 271(1)(c) of the Act.]. 2. The assessee firm had raised issues in its grounds of appeal in an illustrative and narrative manner. In essence, the grievance of the assessee is confined to a solitary ground that the Ld. CIT (A) had erred in upholding the penalty of Rs.1,12,89,700/- levied by the AO u/s 271(1)(c) of the Act. 3. The brief facts of the case are that the assessee firm ( the assessee in short) is engaged in the business of printing of tin plates. During the year under consideration, the assessee had furnished its return of income, admitting Nil income which was, initially, processed u/s 143(1) of the Act and subsequently reopened u/s 147 of the Act. The assessment was finalized u/s 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not include cost of land which had to be excluded for the purposes of computation of capital gains. A copy of the valuation report dt.1.3.2006 of the said building was produced which valued the factory building at Rs.36,24,000/- as on 1.4.2000 and the capital gain was computed at Rs.1,60,000 [FMV of Rs.36,24,000 consideration of Rs.34,64,745]. It was also claimed before the AO that the land was in the names of Shri Abbasi Tinwala and Shri Abedin Tinwala and the assessee was not concerned with the land and that the valuation report prepared for the specific purpose of bank finance need not be considered. 3.2. During the course of reassessment proceedings, a revised return was furnished on 20.3.2006 admitting total income of Rs.1,59,255/- under the head STCG on transfer of Ratanpur factory building and claimed that the same may be treated as return in compliance to notice u/s 148 of the Act. 3.3. Brushing aside the assessee s contentions, the AO, for the elaborate reasons recorded in his impugned order, arrived at the STCG at Rs.2,88,00,255/- [Rs.3,22,65,000 34,64,745] arising out of transfer of capital asset and, accordingly, penal proceedings u/s 271(1)(c) of the Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnish accurate particulars on the part of the assessee; (vi) that it is no longer necessary for the department to go further and establish that there is a conscious concealment of particulars of income or a deliberate failure to furnish accurate particulars on the part of the assessee. 4.3.9. In the present case, the appellant was aware that by revaluation of capital assets at its instance, gains have accrued to the partners. Even if it is considered that land and building bear different valuations, the gains on transfer of land and building ought to have been declared in the original return. Secondly, by filing another valuation report dated 1.3.2006 during reassessment proceedings the appellant had intended to reduce the capital gains liability. There are two valuation reports available, both by Govt. approved valuers valuing the factory building at Rs.86.15 lakhs and Rs.36.24 lakhs respectively as on 1.4.2000. The entire factual matrix suggests that the revaluation of the assets, transfer to the capital account through capital reserve based on same valuation report, claim of depreciation by the resultant company is not a one off mistake but a well thought out strategy. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271 (1) (c) confirmed in a case on account of such debatable issue and difference of opinion. There is no conformity - with regard to the claim of deduction on account of export incentive/DEPB under section 80-IB at the relevant time there was diversity of opinion between various courts and the Tribunal even in view of the ratio laid down by the case (supra) and the Punjab and Haryana High Court in Liberty India v. CIT (2007) 293 ITR 520 /158 Taxman 4 assessee. However, there is no merit in holding the assessee to have furnished inaccurate particulars of income debatable. The assessee has disclosed the material facts relevant for the computation of its income in its return report of the chartered accountant though incomplete. In respect of such a claim, there is no justification in the assessee is being denied being a debatable issue [Para 12]. The learned AR further argued that the assessee had not concealed any particulars of income or furnished any inaccurate particulars of such income since, the assessee had made disclosure of such withdrawal and induction of asset in the books of accounts explicitly which was made available before the revenue based on which the revenue had in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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