TMI Blog2018 (2) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... es to 21%. This may be relevant in case the assessee has not borrowed loan from third parties. When the loan was availed from third parties at the rate of 12%, there is no reason why the assessee preferred to borrow loan from close relatives and paid interest at the rate of 18%. This Tribunal is of the considered opinion that the CIT(Appeals) has rightly found that the excess payment has to be disallowed.- Decided against assessee Penalty u/s 271(1)(c) - profit on sales of shares was not disclosed in original return but by way of another revised return, the assessee claiming that the same was exempted under Section 10(38) - Held that:- There was a confusion in the mind of the assessee whether the profit earned on the transaction on sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals of the assessee and Revenue together and disposing of the same by this common order. 2. Let s first take assessee s appeal in I.T.A. No. 1822/Chny/2016. 3. Shri M. Sri Lisha Stebila Theras, the Ld.counsel for the assessee, submitted that the assessee is engaged in the business of manufacturing and trading in bullion and jewellery. According to the Ld. counsel, there was a survey in the premises of the assessee under Section 133A of the Act on 12.08.2010. During the year under consideration, the assessee borrowed unsecured loan from close relatives and also third parties. According to the Ld. counsel, the assessee paid 18% interest to the close relatives. However, the interest paid to third parties was only at the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the loan borrowed from third parties, the assessee paid interest at the rate of 12%. There was no reason for paying higher rate of interest to the close relatives. The contention of the assessee is that the interest charged by the bank at the relevant point of time was 17.25% and after considering the expenses and other charges levied by the bank, the rate of interest comes to 21%. This may be relevant in case the assessee has not borrowed loan from third parties. When the loan was availed from third parties at the rate of 12%, there is no reason why the assessee preferred to borrow loan from close relatives and paid interest at the rate of 18%. Therefore, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 133A of the Act, a statement of cash payment was found on account of transaction in the shares of 21st Century Finance. The statement indicates the transaction of ₹ 52.5 lakhs in cash. After detection of this transaction during the course of survey operation, according to the Ld. D.R., the assessee declared ₹ 5.5 lakhs as undisclosed income in the revised return filed on 27.08.2010. Had the Department not detected the sale and purchase of shares, according to the Ld. D.R., the assessee would not have disclosed the same. Therefore, the additional income offered by the assessee in the revised return filed on 27.08.2010 is only consequent to the survey conducted by the Department in the premises of the assessee. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, there was a confusion in the mind of the assessee whether the profit earned on the transaction on sale has to be offered or not. This confusion is because of interpretation of provisions of Income-tax Act. The assessee bonafidely believed that the profit on sale of shares is exempted from taxation. Even if there was omission, this Tribunal is of the considered opinion that such an omission cannot be construed as concealment of income or inaccurate particulars of such income. In view of the judgment of Apex Court in Price Waterhouse Coopers Pvt. Ltd. v. CIT (2012) 348 ITR 306, it is an inadvertent omission to disclose the income. This Tribunal is of the considered opinion that there cannot be any levy of penalty under Section 271 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the provisions of Income-tax Act even though it was filed after the survey. Therefore, according to the Ld. counsel, there cannot be any penalty under Section 271(1)(c) of the Act, hence, the CIT(Appeals) has rightly deleted the penalty. 14. We have considered the rival submissions on either side and perused the relevant material available on record. No doubt, the Department found some unaccounted stock during the course of survey operation. But, the fact remains that the assessee has disclosed the same in the original return filed subsequent to the survey, within the prescribed time under the provisions of Incometax Act. Therefore, it cannot be said that there was concealment of income or furnishing of inaccurate particulars of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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