TMI Blog2019 (1) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... e view that the assessee cannot get immunity from the penalty on the ground that there was no specific charge in the notice issued u/s 274 of the Act. - decided against assessee - I.T.A. No. 888/Ahd/2014 - - - Dated:- 1-1-2019 - Shri Waseem Ahmed, Accountant Member And Smt Madhumita Roy, Judicial Member For the Appellant : Shri Ketan Shah, A.R. For the Respondent : Shri Lalit P Jain, Sr. D.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals) II, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A) II/Wd.2(4)/294/2013-14 dated 10.02.2014 arising in the matter of penalty order passed under s.271(1)(c) of the Income Tax Act, 1961(here-in-after referred to as the Act ) dated 20.06.2012 relevant to Assessment Year (AY) 2009-10. 2. The grounds of appeal raised by the assessee are as under:- The following grounds are without prejudice to each other. In view of the facts and circumstances of the case, the learned Assessing Officer/Commissioner of Income Tax (Appeals) erred - 1. The Learned Commissioner of Income Tax (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land situated at 671, Samanvay Nagar Pal Road, Khasara, District Jodhpur Rajasthan. The piece of land was sold for ₹ 30,41,000/- dated 26.05.2008. However, the assessee failed to declare any income under the head capital gain on account of such sale of the plot. Therefore, the AO worked out the capital gain on the sale of such plot of land for ₹ 26,57,708/- only. The necessary computation of capital gain for ₹ 26,57,708/- stands as under: Sr. No. Date of Sale Date of Purchase Sale Value Purchase value Index Cost Gain 1 26.5.2008 16.06.2005 30,41,000 19400+304680 26504+356788 26,57,708 Because of the above, the AO added a sum of ₹ 26,57,708/- as long term capital gain to the total income of the assessee vide order dated 15.12.2011 u/s 143(3) of the Act. 5.1 The assessee in its assessment order initiated the penalty proceedings u/s 271(1)(c) of the Act on account of concealment of income for such capital gain. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sec.!42(l) dated 11.10.2011 received, so, it was decided to pay the tax during the course of hearing itself. 6.3 That to make error is a nature for any human being including some time by Income Tax Officer also because that is the reason why section 263 take care of the error made by the Assessing Officer. So, that might be the error by the assessee also. 7. In view of the aforesaid facts of the case and on going through the aforesaid affidavit, it is respectfully submitted that it was 'bona fide' of the assessee and the assessee lady has acted upon the advice of the concerned Accountant and there was Accountant's mistake to not to include the capital gain in the original return but it was not the mistake of the assessee lady. 8. The following case lows are relevant on the subject. However, the AO disagreed with the contention of the assessee by observing as under: i. The argument of the assessee that the accountant has committed a mistake by not incorporating the capital gain income in her return is not tenable. It is because the assessee cannot be ignorant for the capital gain income earned during the year under consideration. ii. The sale pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 when specific query regarding of the issue of capital gain on the land transaction of sale was raised by the Assessing Officer, the reply was filed. Besides, it is seen that one argument was taken by .the appellant that she had no funds in the bank account to pay the taxes. The Assessing Officer has also negated this argument also by mentioning that the appellant had credit balance with M/s.Shivam Agro Industries. However, this is immaterial that whether the appellant had funds or not. What matters is that the appellant did not disclose the fact of the capital gain in the return of income. In assessment proceedings also no satisfactory explanation was filed for non-disclosure of the fact of the capital gains. In penalty proceedings also the reply filed by the appellant was same that it was the mistake of an accountant whose affidavit was filed before the Assessing Officer. In appellant proceedings also the AR has referred to the same contentions. It has also been mentioned that the parents of the appellant stay at Jodhpur whereas she lives in Ahmedabad with her parent-inlaws and the commission be treated as bona-fide mistake of the appellant for not showing the capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by the AO. From the preceding discussion, we note certain undisputed facts as detailed under: i. The assessee herself has accorded that the accountant has brought to the notice of the assessee about the mistake of not disclosing capital gain income in the return of income. This mistake was brought to the notice of the assessee dated 01.08.2010 whereas, the notice u/s 143(2) was issued on 31.08.2010. Thus, there was a time gap of almost one month between the date when assessee came to know about the fact of not disclosing the capital gain income and the case selected under scrutiny. However, the assessee during this one month did not attempt to rectify her mistake by writing the letter to the AO. ii. The assessee is under the obligation to sign the income tax return which she is supposed to sign after due verification. Thus it appears that the assessee was fully aware of the fact that the capital gain income has not been disclosed in the return of income. We find relevant to refer the different dates on which notices were issued to the assessee during the assessment/penalty proceedings as detailed under: Sr. No. Section under/notices i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it was held as under: 9. Regarding the contention that the Assessing Officer was ambivalent regarding under which head the penalty was being imposed namely for concealing the particulars of income or furnishing inaccurate particulars, we may record that though in the assessment order the Assessing Officer did order initiation of penalty on both counts, in the ultimate order of penalty that he passed, he clearly held that levy of penalty is sustained in view of the fact that the assessee had concealed the particulars of income. Thus insofar as final order of penalty was concerned, the Assessing Officer was clear and penalty was imposed for concealing particulars of income. In light of this, we may peruse the decision of this Court in case of Manu Engineering Works (supra). In the said decision, the Division Bench came to the conclusion that language of and/or may be proper in issuing a notice for penalty, but it was incumbent upon the Assessing Authority to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by them. If no such clear cut finding is reached by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non- speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court. From the above, it is clear that no principle was laid down by the Hon ble Apex Court in the case of S.S.A. Emerald. Therefore, the principles laid down by the Jurisdictional High Court in the case of Snita Transport (Supra) are applicable in the case on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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