TMI Blog2019 (4) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... SAD, JUDICIAL MEMBER Appellant by : Shri Lalit P. Jain, Sr. DR Respondent by : Shri S. N. Divatia Shri Mehul Talera, A.Rs. O R D E R PER PRADIP KUMAR KEDIA - AM: The captioned appeal has been filed at the instance of the Revenue against the order of the Commissioner of Income Tax (Appeals)-4, Ahmedabad ( CIT(A) in short), dated 23.03.2016 arising in the penalty order dated 08.05.2014 passed by the Assessing Officer (AO) under S. 271(1)(c) of the Income Tax Act, 1961 (the Act) concerning AY 2011-12. 2. Briefly stated, the assessee in the instant case, filed its return of income for AY 2011-12 declaring total income of ₹ 643190/-. The return of income was selected for scrutiny through CASS. In the course of scrutiny assessment, it was observed by the AO as per the AIR information of ITD Module that the assessee has sold immovable property on 18.01.2011 and the gain therefrom was not recorded. On inquiry, in the course of the assessment, the assessee submitted the working of long term capital gain in respect of aforesaid property transaction, which was not shown in the return of income. As per the working given by the assessee, the capital gain w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up on the taxable income. As the appellant did not disclose this capital gain in the original return filed and revised return was also not filed by the appellant within the time prescribed as per the Act, the AO made the additions of capital gain income to the returned income. The AO also initiated penalty proceedings for concealment of income and/or furnishing inaccurate particulars of income u/s 271(1 )(c) of the Act The AO levied the penalty stating that as an addition has been made to the returned income, the same shall be deemed to represent the concealed income. 5.1 The appellant contended that he believed that land being agricultural, it was exempt from capital gain tax. He further contended that land was in the name of HUF and not in the name of individual. The moment it was brought to the notice of the appellant that tax is payable on this capital gain, the appellant submitted the calculation of capital gain before the AO at the first opportunity. The questionnaire issued by the AO alongwith notice u/s 142(1) is of very general nature and there was no specific query raised by the AO about this transaction. Keeping in view these facts, penalty should not have been lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income under section 271(1)(c). The assessee voluntarily disclosed additional income during the course of assessment proceedings and paid tax thereon. Even though the revised return was found to be invalid, the Assessing Officer accepted the income as declared in the revised return and computation. The Assessing Officer did not bring any material on record that the declaration of income made by the assessee in his revised return or his Explanation was not bonafide. In these circumstances there appeared no basis for imposition of penalty on the ground that the assessee furnished inaccurate particulars of income. Therefore, the Commissioner (Appeals) was justified in deleting the penalty. It is well settled that the parameters of judging the justification for addition made in the assessment case of the assessee is different from the penalty imposed on account of concealment of income or filing inaccurate particulars of income and that certain disallowance/addition could legally be made in the assessment proceeding on the preponderance of probabilities, but no penalty could be imposed u/s 271(1 )(c) of the Act on the preponderance of probabilities and Revenue has to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee accepted in the statement recorded of having debited bogus expenditure in its Books of Account. After the above survey and recording of statement, only the assessee disclosed additional income by way of a revised return on 11-3-2003 and on these circumstances, the Hon'ble High Court found levy of penalty' u/s. 271(l)(c) was justified. Thus, it is observed in that case, the assessee disclosed the additional income after the same was detected during the course of the survey by the department. Whereas, in the instant case, there is no such material to show that the department had actually detected any income of the assessee which was not disclosed in the return prior to 31-3-2007, when the assessee disclosed its additional income. 14. We find that the issue involved in the instant case is squarely covered by the above cited decision of the Tribunal. We, therefore, following the same, do not find any error in the order of the CIT[A]. Therefore, the appeal of the revenue is dismissed. As the facts of the appellant's case are identical to the facts of the cases decided by the Hon'ble jurisdictional 1TAT, Ahmadabad. The penalty levied by the AO u/s 271(1)(c) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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