9911796707
TMI Blog2014 (7) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... r referred to as 'Assessing Officer') levying penalty u/s. 271(1)(c) of the Income tax Act, 1961 (the Act). 2. The appellant submits that it had filed full, true, correct and complete particulars of its income and has neither concealed its income not filed any inaccurate particulars of income and the CIT(A) erred in upholding the action of AO levying penalty u/s. 27191)(c). 3. The appellant submits that addition has been made by AO merely on the ground that Income was assessable under a different head i.e. under the head "profits & gains of business or profession" as against under head "Capital gains" as per the return of income filed by the appellant and the ld. CIT(A) failed to appreciate that this could not be a ground for levy of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred the details of purchase and sale of property and submitted that all the properties on plots of land along with buildings which are adjoining as it is clear from the GAT Number of these properties. He has pointed out that sale of these properties is only during the year under consideration and there is no sale either in the earlier year or in subsequent year. Therefore, through sale transaction the entire property purchased by assessee was sold during the year under consideration. This is not a regular business activity of assessee, and further, since the year 2002 the assessee has been showing these properties as fixed assets in the balance sheet till these are sold in the year under consideration. Therefore, it is a case of change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retain these properties as capital assets. Some of the properties were sold after 3 years and therefore, the claim of the assessee as capital gain/loss from the sale of these properties is a bonafide claim. 4. On the other hand the ld. DR has relied upon the orders of authorities below and submitted that claim of the assessee has been rejected by the AO by recording the reasons and which has been confirmed by this Tribunal in the quantum appeal. Therefore, the claim of the assessee can not be said to be a bonafide claim when the assessee itself has shown income from sale of these properties as business income in the P&L Account and only to avoid tax, the assessee has claimed it as capital loss. 5. We have considered the rival submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the assessee is a bogus claim or absolutely impossible/inaccurate claim. The assessee has furnished all the relevant particulars regarding purchase as well as sale of property in question. Even the immovable properties were shown as fixed assets in the balance sheet of the assessee right from beginning. Therefore, non-acceptance of the claim would not constitute concealment of particulars of income or furnish inaccurate particulars of income. The assessee let out some of the property after acquisition which shows the assessee's intention was to retain property for a longer period and not to hold simply to resell at the earliest possible occasion. The facts and circumstances of the case do support the bonafide claim of the assessee . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of any facts that the claim of the assessee was not bonafide, the Tribunal deleted the penalty imposed u/s. 271(1)(c) of the Act. The Revenue has not been able to point out that the finding of the Tribunal is perverse. In these circumstances, we see no reason to entertain the proposed question (ii). 5.1 The assessee had disclosed all the particulars regarding the income from sale of property as long term /short term capital gain and after the benefit of indexation claimed as capital loss. An identical issue was considered and decided by this Tribunal in case of Sukdham Construction & Developers Ltd.(supra), in para-3 to 3.1 as under :- "3 We have considered the rival contention as well as the relevant material on record. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee company as adventure in the nature of trade and accordingly assessing the profit under the head "profits and gains of business". Before parting with this appeal, it may be pertinent to mention that our attention was invited to the assessment order for the subsequent assessment wherein the Assessing Officer has not treated the transactions of sale and purchase of shares as business. The short term capital gain has been assessed by the as declared by the assessee. In our considered view, the subsequent assessment order will not cloud the finding of the Revenue authorities in the year under appeal, which is based on the facts and circumstances as prevailing in the year under appeal. There is no discussion in the assessment order for ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
