GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (2) TMI 754 - BOMBAY HIGH COURT

2016 (2) TMI 754 - BOMBAY HIGH COURT - [2016] 383 ITR 19 - Penalty u/s.271(1)(c) - income offered for taxation during survey and return of income was revised after detection by department - Held that:- Commissioner of Income Tax(A) during the penalty proceedings had again examined the issue whether the claim of capital gain made in the regular return of income to the extent of ₹ 1.62 Crores with the particulars in support of the same. On examination, the CIT(A) reaches a prima facie conclu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

S.SANKLECHA AND B.P.COLABAWALLA, JJ. For The Appellant : Mr. A. R. Malhotra a/w Mr. N. A.Kazi For The Respondent : Mr. Nishit Gandhi i/b Mr. Vipul Joshi P. C.: This Appeal has been filed by the Revenue under Section 260A of the Income Tax Act, 1961( the Act ) assailing the order dated 1st May, 2013 passed by the Income Tax Appellate Tribunal (Tribunal). The impugned order dated 1st May, 2013 deleted the penalty imposed under Section 271(1)(c) of the Act relating to Assessment Year 2006-2007. 2 T .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ome, as filed an amount of ₹ 1.62 Crores was credited to its capital account being Long Term Capital Gain on sale of shares. However, no income on account of the above was offered for taxation. Thereafter, on 5th October, 2007, during a course of survey, the Respondent-assessee declared additional income of ₹ 5 Crores which included an amount of ₹ 1.62 Crores for Assessment Year 2006-07 which had not been returned as income being long term capital gains in view of exemption cla .....

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 271(1)(c) of the Act, for claiming incorrect exemption. 5 By an order dated 27th May, 2009 the Assessing Officer imposed a penalty of ₹ 55.79 lakhs under Section 271(1)(c) of the Act for having concealed particulars of income and furnishing inaccurate particulars thereof. This on the ground that the amount of ₹ 1.62 Crores had originally been claimed as Long Term Capital Gain being exempt in its regular return of income. However, the same was withdrawn and offered to tax as busine .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ns have been duly disclosed in the return of income. Further the order of the CIT(A) observes that during the course of proceeding before him sufficient evidence in the form of brokers note, copy of balance-sheet, copy of Demat account, evidence of payment for shares etc has been produced in support of the transaction for him to prima facie conclude that the amount of ₹ 1.62 Crores appears to be attributable to Long Term Capital Gain. 7 On further appeal by the Revenue, the Tribunal by 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

es reliance upon the decision of the Apex Court in Commissioner of Income Tax v/s Reliance Petroleum Products Private Limited reported in 322 ITR 158. Further it holds that mere change in head of income by the Assessing Officer from that claimed, would not attract penalty. In support, reliance was placed upon the decision of this Court in Commissioner of Income Tax v/s M/s. Bennett Coleman and Co.Ltd (Income Tax Appeal(L)No.2117 of 2012 rendered on 26th February, 2013. The impugned order also re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y of balance sheet, copy of Demat Account, bank statement etc to reach a conclusion that prima facie the income appears to be on account of Long Term Capital Gain. This is totally unjustified as no remand report was called for from the Assessing Officer and the Revenue was given no opportunity to contest the same; (b) The justification by the Assessee of having made the disclosure of ₹ 1.62 Crores as business income when originally claimed as capital gain was for the purposes of buying pea .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that the order of the CIT(A) was in breach of principles of natural justice in as much as no remand report was called for by the CIT(A) in respect of the fresh evidence led by the Respondent-assessee before him is not even mentioned in the memo of appeal. We find that there is nothing on record to indicate that no remand report were called for by the CIT(A). However,when confronted, Mr Malhotra submits that evidence of no remand report having been called for is the absence of it being mentioned .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

be determined by the Tribunal. It is not open at this stage in an appeal under Section 260A of the Act to go into facts which were not disputed at any prior stage. 10 The reliance by the Revenue upon the decision of the Apex Court in Mak Data P. Ltd(supra) to contend that the justification of having deleted and accepted the amount of ₹ 1.62 Crores as business income, to buy peace is not available. We find that the facts in that case are completely distinguishable and the observations made .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

assessee had to offer an explanation for the concealment of income and/or furnishing of inaccurate particulars of income by leading cogent and reliable evidence. The Apex Court further records that in the facts of the case before it the surrender of income was not voluntary but was made only on the account of detection by the Assessing Officer during the course of survey. Further, the Apex Court also records the fact that the survey was conducted more than 10 months before the assessee filed its .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

us, the Appellant was under bonafide belief that the income from long term capital gain was exempt from tax. Thus, the decision of the Apex Court would not apply to the facts arising in the present case . 11 The contention on behalf of the Revenue that in case there is a tax impact by virtue of change of head during the assessment proceedings then penalty is imposable and the decision of this Court in M/s. Bennett Coleman(supra) would not apply. In such a case, Mr. Malhotra, for the Revenue emph .....

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