TMI Blog2015 (10) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the assessee. The Department has not been able to discharge the onus of establishing that the assessee had deliberately concealed the income or furnished inaccurate particulars of income. Thus, in view of the facts of the case, we accept the explanation furnished by the assessee and delete the penalty levied u/s. 271(1)(c) of the Act. - Decided in favour of assessee. - ITA No. 1301/PN/2014 - - - Dated:- 28-8-2015 - SHRI R.K. PANDA AND SHRI VIKAS AWASTHY, JJ. For The Assessee : Shri Sunil Pathak For The Revenue : Shri Rajesh Damor ORDER PER VIKAS AWASTHY, JM: The appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-V, Pune dated 25-04-2014 for the assessment year 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer, accordingly, allowed set off of loss at ₹ 24,77,330/- and made addition of ₹ 51,44,786/-. The assessee filed appeal against the order of Assessing Officer. During the appellate proceedings, the discrepancy in the cost of land as shown in the books of account and as claimed by the assessee was observed by the Commissioner of Income Tax (Appeals). The assessee admitted the mistake in respect of cost of acquisition. The Commissioner of Income Tax (Appeals) withdrew the adjustment of brought forward loss ₹ 24,77,330/- on the ground, that carried forward business loss can be set off only against profits and gains of business profession. Penalty proceedings u/s. 271(1)(c) of the Act were initiated for furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 12,58,403/-. This mistake was neither observed by the assessee nor it came to the notice of Assessing Officer during assessment proceedings. The mistake came to light during first appellate proceedings. The assessee immediately accepted the mistake and furnished the explanation for the same. The balance sheet of the assessee shows the correct value of land. There was no deliberate attempt on the part of the assessee to furnish wrong information in the computation of income. It was an inadvertent bonafide mistake. The ld. AR submitted that the Commissioner of Income Tax (Appeals) in his order has drawn inference against the assessee from the return of income filed by the daughter of the assessee (Smt. Nirupa Kanitkar) in her own cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital Gain. By adding zero (0) in the amount of cost of land the long term capital gain was reduced from ₹ 5,13,08,794/- to ₹ 2,95,75,834/-. Thus, there was a huge difference of more than ₹ 2.17 Crores in the long term capital gain. The assessee is a habitual offender and in the habit of deliberately claiming excess deduction, expenditure and suppressing the income. This fact is evident from the observations made by the Commissioner of Income Tax (Appeals) in the impugned order. Smt. Nirupa Kanitkar in her return of income for the assessment year 2008-09 had committed similar mischief by changing the amount shown in the agreement. Therefore, the action of the assessee in punching extra zero (0) while stating the cost of lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so considered the decisions on which the ld. AR has placed reliance. The penalty has been levied for inflating the acquisition cost of land by adding zero (0) at the end of actual cost, while computing long term capital gain from sale of land. It is an undisputed fact that in the books of account, the value of land has been rightly stated. Thus, there is no miss-statement or concealment in the books of account. The wrong mentioning of figure in the computation has been attributed to the new computer software, wherein the figure zero (0) is set to be part of software and has to be replaced with the actual figure while punching the amount. The error in mentioning the cost of land was pointed out by the Commissioner of Income Tax (Appeals) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res and surmises. It is a well settled law that penalty cannot be levied merely on assumption and presumptions. The assessee has furnished the reasons for mentioning of wrong amount in the computation of Long Term Capital Gain, which to our mind is reasonable and acceptable within meaning of section 273B of the Act. 9. The Hon ble Madras High Court in the case of CIT Vs. Lakshmi Vilas Bank Ltd. (supra) had upheld the order of Tribunal in deleting the penalty levied u/s. 271(1)(c) of the Act in somewhat similar circumstances. In the said case, the assessee filed its return of income. The assessment was completed u/s. 143(3) of the Act. During the course of the assessment, the Assessing Officer found that the assessee had made excess claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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