TMI Blog2011 (6) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... his order dated 30.06.2008. 2. The only issue in this appeal of the assessee is against the order of CIT(A) confirming the levy of penalty u/s. 271(1)(c) of the Act by Assessing Officer. The Ld. Counsel for the assessee has raised additional ground, which is a legal ground that amount of capital gain withdrawn in the year if not taxable in that year, then there is no question of levy of penalty, in view of the proviso 1 to section 54F(4) of the Act. For this, the assessee has raised following additional ground: For that the penalty imposed is bad in law since the addition made in the assessment itself laws bad in law, the amount was not liable to be added in the assessment year in question. 3. Brief facts leading to the above iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted these additions on assessment of capital gains. Assessing Officer subsequently, initiated penalty proceedings u/s. 271(1)(c) of the Act and levied penalty for furnishing inaccurate particulars of income and concealment of income. Aggrieved, assessee preferred appeal before CIT(A), who confirmed the penalty by holding that the assessee agreed subsequent to detection and this is not a voluntary disclosure. Aggrieved, now assessee is in appeal before us. 4. Before us, the Ld. Counsel for the assessee Shri S. M. Surana pointed out that proviso to section 54F(4) of the Act provides how the amount deposited in Capital Gains Accounts Scheme is to be dealt with and if prematurely withdrawn then how to be taxed and according to this provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances of the case. We have to go through the proviso to section 54F(4), which reads as under: Provided that if the amount deposited under this sub-section is not utilised wholly or partly for the purchase or construction of the new asset within the period specified in sub-section (1), then,- (i) the amount by which- (a)the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of the new asset as provided in clause (a) or, as the case may be, clause (b) of sub-section (1), exceeds (b)the amount that would not have been so charged had the amount actually utilised by the assessee for the purchase or construction of the new asset within the period spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1985 has elaborately discussed how and in which year the capital gain will be taxed in case of premature withdrawal or unutilized withdrawal. The Board has clarified that the capital gain relatable to the unutilized amount shall be treated as the capital gain of the previous year in which the period of three years from the date of transfer of the original asset expires. In the present case before us also the original assets were transferred as on 17.12.2004 by registering the sale deed and the amounts were deposited by the assessee under CGAS-1988 with UBI, Sevoke Road, Siliguri on 27.7.2005 before the due date of filing of return of income. Subsequently, the assessee withdrew this amount as on 20.12.2007, as this amount remained unutiliz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on the case law of CIT v. Gokuldas Harivallabhdas [1958] 34 ITR 98 (Bom). And further held that the terms of all the earlier orders showed clearly that the amount of ₹ 24,600 was assessable as income from undisclosed sources but the entries aggregating to the said amount of ₹ 24,600 were made during the course of the financial year that began on April 1, 1948, and ended on March 31, 1949. The relevant assessment year for that financial year was the assessment year 1949-50. No penalty could be imposed for nondisclosure of that income in assessment for the assessment year 1950-51.Hon ble High Court laying down the principal stated that assessment proceedings are taxing proceedings and penalty proceedings are criminal procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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