TMI Blog2013 (10) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... /M/12 - - - Dated:- 16-9-2013 - Shri R. S. Syal And Shri Sanjay Garg,JJ. For the Petitioner : Shri Jitendra Jain For the Respondent : Shri Sanjeev Jain, D. R. ORDER Per Sanjay Garg, Judicial Member: These two appeals are preferred by the Revenue against the two separate orders of the ld. CIT(A) dated 30.04.12 and 27.04.12 respectively relating to the assessment year 2004-05. In both the appeals the Revenue has assailed the deletion of penalty by the ld. CIT(A) which was levied by the AO under section 271(1)(c) of the Income Tax Act. Since a common issue is involved in both the appeals the same are being disposed of with this common order. For the sake of convenience the facts have been taken from ITA No.4594/M/12. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of some challans. Subsequently, the AO issued notice under section 148 reopening the proceedings in the case of the assessee. The notice under section 148 was issued on November 25, 2009. In response to the same the assessee submitted that the assessee too had applied to the AAR to determine the nature of its income from sale of securities in India. The AAR, in the assessee's case however, vide order dated January 8, 2007 held that its income was in the nature of capital gains and not business income. Since the ruling in the assessee's case was pronounced by the AAR after the expiry of the due date to revise its return of income for AY 2004-05, the assessee could not revise its return of income to adopt the position as per the ruling of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Appeal (L) No.953 of 2011 with Income Tax Appeal (L) No.954 of 2011 dated 12th September 2011. 5. The assessee's submissions have been considered. The Mumbai ITAT in ITA No.1617/M/2000 relied on the decision of the Supreme Court in the case of Reliance Petro Products (P) Ltd. (322 ITR 158) and held that this is a case of making a legal claim after disclosure of all the relevant facts and hence does not amount o concealment of income or furnishing of inaccurate particulars. It is no doubt true that the assessee claimed in its revised return that the income is not taxable on 31st of March 2005. Thereafter the AAR in their own case gave a ruling against the assessee in January 2007. Though the assessee had made a claim for refund in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the similar issue. The co- ordinate bench of this Tribunal, in the above said authorities while upholding the order of the ld. CIT(A) deleting the penalty, has observed as under: "7. Aggrieved the Revenue is on appeal. Heard both the parties. The fact is that the assessee first returned the profit on sale of securities of Rs.9,28,49,984/- as capital gains. Afterwards, on perusing the order of the AAR in the case of XYZ/ABC Equity Fund (250 ITR 194) AND Fidelity Advisors Series VIII (271 ITR 1) the assessee felt that the profits may constitute business profits and as the assessee does not have any permanent establishment in India, the profits will not be taxable in India. Therefore they filed revised return claiming the income as exempt an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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