TMI Blog2016 (1) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 4-1-2016 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER For The Assessee : Sh. Raj Kumar Gupta, CA For Teh Department : S h. T. Vasanthan, Sr. DR ORDER PER H.S. SIDHU, JM This appeal by the Assessee is directed against the order of the Ld. Commissioner of Income Tax (Appeals)-VIII, New Delhi dated 03.5.2006 pertaining to assessment year 2004-05 on the following grounds:- 1. That on the facts and in law imposing the penalty under section 271(1)(c) for ₹ 50,00,000/- is totally wrong, unjustified and illegal. The appellant company had never furnished any inaccurate particulars at any stage of assessment proceedings as well in penalty proceedings. As the Hon ble ITAT has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in question were held as investments and loss on the sale thereof was capital loss and not Revenue Loss and set aside the order of the Tribunal. 2.1 The AO in the penalty proceedings vide his order dated 31.3.2008 has imposed the minimum penalty of ₹ 50,00,000/- u/s. 271(1)(c) of the I.T. Act, 1961. Ld. CIT(A) in appeal has upheld the penalty of ₹ 50,00,000/- vide his order 2.1.2009. Aggrieved, the Department preferred an appeal before the ITAT and the ITAT vide order dated 3.6.2009 deleted the penalty by holding that as the addition which forms the basis of imposing of penalty by the AO has been deleted by the ITAT impugned penalty amount imposed by the AO and sustained by the CIT(A) cannot survive and accordingly the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ages 1 to 31 having the copy of the assessment order u/s. 143(3) dated 30.9.2005; copy of the Ld. CIT(A) order dated 3.5.2006 (Quantum); Copy of Hon ble High Court of Delhi order dated 18.11.2011 (Quantum); ITAT order dated 3.6.2009 (Penalty) and the Hon ble High Court of Delhi order dated 6.2.2012 (Penalty). He also filed the copy of the Brief Synopsis and firstly stated that no penalty on debatable issue and in a case of difference of opinion; claim made by the assessee is bonafidely; all relevant facts and information correctly supplied and amount claimed under one head but assessed under a different head is not concealment and lastly submitted that in the absence of striking out the irrelevant portion on the printing SCN, the specific c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Because the mere fact that an addition is confirmed in quantum proceedings cannot be conclusive of the imposition of penalty. The Hon ble Calcutta High Court in Durga Kamal Rice Mill vs. CIT (2004) 265 ITR 25 (Cal), has held that quantum proceedings are different from penalty proceedings. 6.2 However, we find force in the assessee s counsel submissions that the claim of the assessee is bonafidely, because the shares of SBEC Sugar Ltd. were sold from which brought the said loss. It was also submitted before us that the part shares out of total shares of SBEC Sugar Ltd. were sold in earlier year AY 2003-04, resulted into loss of ₹ 46.35 lacs which was claimed in AY 2003-04 as a revenue loss and was allowed. Accordingly, in AY 2004- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention of the Revenue then in case of every return where the claim made is not accepted by the Assessing Officer for any reason, the assessee will invite penalty u/sec. 271(1)(c). That is clearly not the intendment of the Legislature . 6.3 Moreover, we also find that in this case all the relevant facts and information correctly supplied amount. In this case the assessee has claimed revenue loss bonafidely. The loss has been accepted as it is but only as a capital loss. Non-acceptance of a claim bonafidely made under one head but assessed under different head is not a situation of concealment of income. In this regard, we draw support from the decision in the case of HMA Udyog (P) Ltd. 211 CTR (Del.) 543, where it expenses claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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