TMI Blog2015 (11) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct of the assessee was not bona fide, we are of the considered view that it was not a fit case for levy of penalty for concealment of income or filing of inaccurate particulars of income under section 271(1)(c) of the Act, which is accordingly cancelled and ground of appeal of the assessee is allowed. In view of our decision that this case is not a fit case for levy of penalty under section 271(1)(c) of the Act on its merits, we are not adjudicating the other legal issues raised by learned counsel for the assessee on the legality of the penalty order. - Decided in favour of assessee. - I. T. A. No. 1025 /Del/ 2010 (assessment year 2004-05). - - - Dated:- 18-3-2015 - G. C. GUPTA (Vice-President) and SMT. B. C. MEENA (Accountant Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submitted that the assesse has filed this letter dated December 13, 2006 voluntarily and has also given Note No. 3 as a part of Form 3CD wherein this fact of change in the shareholding of the company was specifically mentioned. This letter of the assessee dated December 13, 2006 was accepted by the Assessing Officer and the assessed income and returned income of the assessee had remained the same at nil. He submitted that the conduct of the assessee was bona fide as it has taken legal opinion from the esteemed M/s. Bansi S. Mehta and Co., Mumbai, dated June 15, 2001 wherein they had opined regarding the allowability of the business income set off against the brought forward losses with the caution that position may however require succes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shyama A Bijapurkar I. T. A. No. 842 of 2010 and of the Income-tax Appellate Tribunal in the case of ACIT v. A. B. Movies P. Ltd. I. T. A. No. 432/Del/2009. Alternatively, he argued that no tax was sought to be evaded and therefore, no penalty could be levied. 5. The learned Departmental representative vehemently opposed the submissions of learned counsel for the assessee. She submitted that the return of income was filed by the assessee on November 1, 2004 and the assessee could not explain why it surrendered its claim of set off against the business income only after the scrutiny notice under section 143(2) was issued to the assessee. She submitted that the conduct of the assessee was not bona fide and the assessee has to explain that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2014] 41 taxmann.com 447 (All) ; and (16) CIT v. HCIL Kalindee Arsspl [2013] 37 taxmann.com 347 (Delhi). 6. She referred to the relevant portion of the order of the Assessing Officer and the Commissioner of Income-tax (Appeals). 7. Learned counsel for the assessee submitted that the case law cited by the learned Departmental representative is distinguishable on facts, as, in these cases, the assessee has conceded and in some cases, it was found that the asset was never used for business on which depreciation was claimed and that the speculative profit was not disclosed in the return of income. He relied on the decision of the hon'ble Delhi High Court in the case of CIT v. Rita Malhotra [1985] 154 ITR 550 (Delhi). 8. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no material brought on record to suggest that the letter of the assessee dated December 13, 2006 was not voluntary. Merely because the Assessing Officer has issued notice under section 143(2) of the Act, it does not follow that any offer made by the assessee was not voluntary. It was not the case of the Revenue that the assessee has made the surrender after being cornered by the Assessing Officer by pointing out that the claim of set off made by the assessee was not in accordance with law. The assessed income and returned income in this case was nil. The only material change was that the business income was set off by the assessee against the brought forward business losses of the earlier years in the return of income and, thereafter, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osses under a particular head of brought forward losses or the other head of brought forward losses. There being no material brought on record on behalf of the Revenue to suggest that the conduct of the assessee was not bona fide, we are of the considered view that it was not a fit case for levy of penalty for concealment of income or filing of inaccurate particulars of income under section 271(1)(c) of the Act, which is accordingly cancelled and ground of appeal of the assessee is allowed. In view of our decision that this case is not a fit case for levy of penalty under section 271(1)(c) of the Act on its merits, we are not adjudicating the other legal issues raised by learned counsel for the assessee on the legality of the penalty order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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