TMI Blog2013 (10) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty in the present case – Decided in favor of Revenue. - I.T. A. No.2333/AHD/2012 - - - Dated:- 4-10-2013 - Shri D. K. Tyagi, J.M. And Shri Anil Chaturvedi, A.M.,JJ. For the Appellant : Shri O. P. Batheja, Sr. D. R. For the Respondent : Shri M. K. Patel. A. R. ORDER Per Shri Anil Chaturvedi,A. M. 1. The present appeal filed by the Revenue is directed against the order of CIT(A) dated 21.08.2012 whereby the penalty of Rs. 6,83,700/- levied by Assessing Officer u/s. 271(1)(c) vide order dated 23rd May, 2011 was deleted. 2. The facts as culled out from the order of lower authorities are as under. 3. Assessee is an individual who filed her return of income for A.Y. 2008- 09 on 19.11.2008 declaring total income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the omission, the revised statement of income was filed and tax was also paid. Further, the power of attorney holder was released from her duties. Further, the appellant has submitted that the capital gain has been disclosed before detection by the A. O. and, therefore, penalty should not be imposed. After consideration of all the facts, it is noted that the A. O. had issued a notice u/s. 142(1) on 26/07/2010 fixing the date of compliance to 25/08/2010, The appellant was asked to furnish details regarding investment and source in respect of the AIR information. On receipt of that information, the appellant revised the return on 04/09/2010. A perusal of the penalty order show that no notice was issued during the course of assessment proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has given the power of Attorney to Shri Baldevbhai Patel and the power of Attorney holder had sold the property and filed the return of income without disclosing the capital gain arising out of sale of property and the omission to disclose the capital gain was due to over sight. However, on receiving the AIR information she noticed that the capital gain earned on sale of property remained to be shown in her return of income and she therefore furnished revised statement of income and offered the short term capital gain of Rs. 21,55,360/- for tax. The learned D.R. further submitted that if the details would not have been called for from the Assessee, the short term capital gain arising would not have been taxed. He further submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g certain details cannot be termed as detection of concealment by the AO. The receipt of AIR information was merely of investment and sale of property which could not lead to a prima facie belief as to concealment as the contents, purport and the implications of the documents were yet to be gone into. Therefore, at the point of time the revised return was filed by the appellant and taxes were paid, the Assessing Officer admittedly had no idea as to whether the AIR information would reveal any concealment. Reliance placed on the following decisions: CIT v. Shankerlal Nebhumal Uttamchandani [20091 311 ITR 327 [Gujarat] Jaysukh M. Parmar v. Assistant Commissioner of Income-tax [2013] 33 taxmann.com 422 (Ahmedabad - Trib.) Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... USA as it is not the case of the AO that there was any collusion with the POA. Reference is invited to decision of P H High Court in 274 ITR 603 5 There was definite information in possession with the AO on enquiries made and which was confronted to the appellant after which the revised return was filed. Hence, the return was not treated as voluntary. There was no definite information with the AO except the fact that the appellant had sold a property during the year and no enquiries were carried out to lead to a conclusion that the appellant had in fact concealed her income. The return filed thus requires to be treated as voluntary as it before the actual detection by the A.O. 6 In this case, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Secondly, circumstances surrounding the explanation must shown that what is stated in the explanation could be reasonable accepted as happened. Further the head note in the case of Kailashbhai Ambalal Shah (supra) reads as under: "Section 271(i)(c) of the Income-tax Act, 1961 - Penalty - For concealment of income - Assessment year 2006-07 -Assessee was earning income from interest and share from partnership firm - He filed return showing interest income of Rs. 129 only - Subsequently, Assessing Officer received information from 'B' bank as a part of routine annual information return (AIR) filed by bank for financial year 2005-06 wherein it was found that assessee had received interest income of over Rs. four lakhs during relevant year - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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