Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (11) TMI 129 - ITAT DELHI

2015 (11) TMI 129 - ITAT DELHI - [2015] 42 ITR (Trib) 624 (ITAT [Del]) - Penalty U/S 271(1)(c) - change in the head of income - income from the sale / maturity of National Housing Bond under the head long term capital gain or income from other sources - Held that:- In the present case, the assessee offered to tax, the income from the sale / maturity of National Housing Bond under the head long term capital gain. The A.O. chooses to tax the same under ht head 'income from other sources'. The inte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

losed in the income tax return filed by the assessee. Income had been offered under the head 'capital gain' T.D.S. Under these circumstances, we cancel the penalty levied u/s 271(1)(c) of the Act - Decided in favour of assessee. - ITA No. 1423 /Del/2013 - Dated:- 21-7-2015 - J S Reddy, M And A T Varkey, JM For the Appellant : Dr Rakesh Gupta, and Shri Somil Aggarwal, CA For the Respondent : Shri K K Jaiswal, Sr. DR ORDER This is an appeal filed by assessee directed against the order of Ld. CIT(A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

2. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in passing the impugned penalty 'order being contrary to law as the assessment order framed under section 143(3) dated 25-10- 2010 was also illegal, beyond jurisdiction and void ab-initio. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in levying penalty U/S .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ndings and without giving adequate opportunity to the assessee and the same is not sustainable on various legal and factual grounds. 5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in imposing a penalty of ₹ 12,00,000/- and that too without recording mandatory "satisfaction" as per law." 2. The brief facts of the case as stated in assessment order are as under: "As per computat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

order sheet entry dated 26.11.2009. In response to this assessee has furnished written reply as under "The gross maturity proceeds of the said investment amounting to ₹ 232,86,842/- includes Long- Term-Capital Gain of ₹ 32,86,842 which was declared in the 3assessee has not received any interest or any other income during the holding Period of the said investment in bonds and said Bonds were Long Term specified asset as also mentioned on the certificate issued by National Housing .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

considering ₹ 3,28,509/- already shown by the assessee, addition of ₹ 29,58,333/- is made to the income of the assessee." 3. Penalty was levied u/s 271(1)(c) by the A.O. and confirmed by Ld. CIT(A). Before us, Dr. Rakesh Gupta, and Shri Somil Aggarwal, CA, Ld. counsels for the assessee and Shri K. K. Jaiswal, Sr. Department Representative were present and submitted their contentions. 4. We have heard rival submissions and on careful consideration we hold as follows:- In the pres .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

; from the head of income 'capital gain'. 5. Ld. Counsel for the assessee submitted that under similar circumstances, the penalty has been cancelled and he relied upon the following case laws: i) CIT Vs Auric Investment and Securities Ltd. 310 ITR 121 ii) CIT Vs Bennett Coleman & Co. Ltd. 87 DTR 368 iii) CIT Vs Bhartesh Jain 235 CTR 220 6. The Ld. counsel for the assessee reiterated the submissions made before the A.O. as well also Ld. CIT(A). The Ld. D.R. submitted that N.H.B. issue .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on'ble Karnataka High Court in the case of CIT Vs Manjunatha Cotton and Ginning Factory and others reported in 359 ITR 565 after considering a number of judgements on the issue of penalty u/s 271(1)(c) culled out the proposition as under: "62 In the light of what is stated above, what emerges is as under : (a) Penalty under section 271(1)(c) is a civil liability. (b) Mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities. (c) Willful con .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ut in Explanation 1(A) and 1(B) it should be discernible from the said order which would by a legal fiction constitute concealment because of deeming provision. (g) Even if these conditions do not exist in the assessment order passed, at least, a direction to initiate proceedings under section 271 (1) (c) is a sine qua non for the Assessing Officer to initiate the proceedings because of the deeming provision contained in subsection (1B). (h) The said deeming provisions are not applicable to the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

der that, it is on account of such unearthing or enquiry concluded by the authorities it has resulted in payment of such tax or such tax liability came to be admitted and if not it would have escaped from tax net and as opined by the Assessing Officer in the assessment order. (l) Only when no explanation is offered or the explanation offered is found to be false or when the assessee fails to prove that the explanation offered is not bona fide, an order imposing penalty could be passed. (m) If th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

if the appellate authority records satisfaction, then the penalty proceedings have to be initiated by the appellate authority and not the assessing authority, (p) Notice under section 274 of the Act should specifically state the grounds mentioned in section 271(1)(c), i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income (q) Sending printed form where all the grounds mentioned in section 271 are mentioned would not satisfy the requirement of law. (r) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version