TMI Blog2016 (8) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the view that this penalty levied u/s 271(1)(c) of the Act cannot sustain and hence, the same is deleted for both the years - ITA No.6195 & 1686/Mum/2006 - - - Dated:- 17-6-2016 - SRI MAHAVIR SINGH, JM AND SRI RAMIT KOCHAR, AM For The Appellant : Shri Girish Dave, Ms. Kadambari Dave, ARs For The Respondent : Shri S. C. Tiwari, DR ORDER PER MAHAVIR SINGH, JM: Out of these two appeals by assessee, ITA No.6195/Mum/2011 is arising out of the order of CIT (A)-26, Mumbai in appeal No.CIT(A)-26/IT-112/15(2)(2)/08-09 dated 09-06-2011. Assessment was framed by the ITO, Ward-15(2) (2), Mumbai for assessment year 2004-05 vide his order dated 28-11-2006 u/s 143 (3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). Penalty under dispute was levied by ITO, Ward-15(2) (2), Mumbai u/s 271 (1) (c) of the Act vide order dated 28-01-2009. 2. The other appeal of the assessee in ITA No.1686/Mum/2011 is arising out of the order of the learned CIT (A)-26, Mumbai passed in appeal No.CIT (A)-26/IT-113/15(2) (2)/08-09 dated 16-12-2010. In this case, assessment was framed by the ITO, Ward-15(2) (2), Mumbai for assessment year 2005-06 vide his order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of clubbing provisions u/s 64(1A) of the Act. Accordingly, he disallowed the claim of Long Term Capital Loss or Short Term Capital Loss which has been arisen in assessment year 2002-03 and 2000-2001 respectively. Aggrieved, the assessee preferred appeal before the CIT (A) and also before the Tribunal, wherein the disallowance of brought forward losses on account of Long Term Capital Gains and Short Term Capital Gains of earlier years was confirmed. Subsequently, penalty proceedings u/s 271 (1) (c) of the Act were initiated and the AO levied the penalty to the extent of 100% of the tax to be evaded at ₹ 2,00,488/- by observing as under:- The penalty proceedings were initiated for wrong claim of set off of earlier years long term capital loss. The assessee by her letter dt. 18/11/2008 has submitted various Supreme Court and Hon ble High Court judgments on various issues of penalty u/s. 271 (1) (c). I have gone through of these case laws but I find that these case laws are totally different and have no relevance to the issues involved in the present case. The assessee belongs to the family who is the owner of Parle Group of Industries where reputed CAs and Tax Consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same are genuine losses. Learned Counsel for the assessee filed details of carry forward and set off of losses which are as under: In terms of the above, learned Counsel for the assessee stated that, from the above chart it is clear that assessee s father Shri Raj Kantilal Chauhan has not claimed any brought forward loss on account of long term capital gain or short term capital gain in the AY under consideration. He explained that the income of both the assessee as well as her father is in same tax bracket/slab and cannot be said that there is revenue loss rather assessee s case is totally revenue neutral. According to him, the assessee has filed all the particulars before the AO in respect to claim of loss on both the counts i.e. long term capital gains and short term capital gains. In view of this, learned Counsel for the assessee stated that there is neither concealment nor furnishing of inaccurate particulars of income as alleged by the authorities below. He took us through the penalty order of the AO and argued that there is no mention of concealment or furnishing of inaccurate particulars of income by the AO in his penalty order and the penalty is levied on wrong c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eforth assessee has to claim these losses instead of father of the assessee in whose hands assessee s income used to be clubbed prior to earlier assessment year 2003-04. Moreover, the assessee was under bonafide belief about the claim of this loss, because the AO himself has allowed the claim of loss for assessment year 2003-04 although u/s 143 (1) of the Act. And once the Revenue has itself allowed the claim, the assessee was under bona fide belief that it is allowable loss. Even otherwise, there is no revenue loss to the Department for the reason that both the assessee as well as her father are under same tax bracket/slab of tax as is evident from the above chart. We find support to the arguments of Ld. Counsel , wherein he referred to the decision of the Hon ble Bombay High Court in the case of CIT Vs Nalin P. Shah (HUF) [(2013) 40 Taxmann.com 86 (Bombay)] wherein almost on similar facts the Hon ble High Court confirmed the order of the Tribunal deleting the penalty by observing as under:- 4. In this case, the respondent-assessee had declared long term capital loss of ₹ 4.39 crores which were inclusive of loss incurred on the sale of US-64 units. The assessing officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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