TMI Blog2018 (2) TMI 1906X X X X Extracts X X X X X X X X Extracts X X X X ..... re in line with the facts considered by the Hon ble Supreme Court in the case of Shakti Trading Company [ 2001 (8) TMI 5 - SUPREME COURT] . When the method adopted by the assessee was duly supported by the decision of the Hon ble Supreme Court, it cannot be said that the assessee has filed inaccurate particulars of income or has concealed the particulars of income. Moreover, when there are two decisions of the Apex Court, one in favour of the assessee and one in favour of the revenue itself makes the issue highly debatable. In our understanding of the law, penalty cannot be levied u/s. 271(1)(c) under such circumstances. We, accordingly, set aside the findings of the CIT(A) and direct the A.O. to delete the penalty so levied Penalty lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For The Respondent : Shri Albiness Tirkey, Sr. D. R. ORDER PER N. K. BILLAIYA, ACCOUNTANT MEMBER: 1. ITA Nos. 1445/Ahd/2014 1597/Ahd/2014 are cross appeals by the Assessee and the Revenue preferred against the order of the Ld.CIT(A)-VI, Ahmedabad dated 24.03.2014 pertaining to A.Y. 2008-09. 2. Both these appeals were heard together and are disposed of by this common order for the sake of convenience and brevity. ITA No. 1445/Ahd/2014 Assessee s appeal for A.Y. 2008-09 3. The solitary grievance of the assessee relates to the levy of penalty u/s. 271(1)(c) of the Act on the allegation that there was under valuation of clos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded by valuing the stock at market rate and made addition of ₹ 45,26,544/- on account of under valuation of closing stock. Penalty proceedings were separately initiated for furnishing inaccurate particulars of income. 6. After giving a show cause notice, the A.O. concluded by levying penalty u/s. 271(1)(c) of the Act on the impugned addition of under valuation of closing stock. 7. Assessee carried the matter before the ld. CIT(A) but without any success. 8. Before us, the ld. counsel for the assessee vehemently state that the assessee never filed any inaccurate particulars and the method of valuation adopted by the assessee was very much in line with the decision of the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo decisions of the Apex Court, one in favour of the assessee and one in favour of the revenue itself makes the issue highly debatable. In our understanding of the law, penalty cannot be levied u/s. 271(1)(c) of the Act under such circumstances. We, accordingly, set aside the findings of the ld. CIT(A) and direct the A.O. to delete the penalty so levied. Appeal filed by the Assessee is allowed. ITA No. 1597/Ahd/2014 Revenue s appeal for A.Y. 2008-09 10. The solitary grievance of the revenue is that the ld. CIT(A) erred in deleting the penalty levied u/s. 271(1)(c) of the Act to the extent of ₹ 1.13 crores on the alleged ground that the assessee has not disclosed the income arising from transfer of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied u/s. 271(1)(c) of the Act for concealment of income. In its reply, the assessee strongly objected for the initiation of penal proceedings stating that the HUF proprietary concern was agreed to be transferred to the partnership firm on and from 25.02.2008 with of its assets and liabilities. The value of trade mark was credited by the partnership firm in the respective capital accounts of the partner. The A.O. was of the opinion that the assessee was in complete knowledge of the fact that the partnership firm has credited the value of trademark/goodwill in the capital account and therefore it is a clear case of concealment and levied the penalty u/s. 271(1)(c) of the Act accordingly. 13. Assessee agitated the matter befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. Before us, the ld. D.R. strongly supported the findings of the A.O. Per contra, the ld. counsel for the assessee reiterated what has been stated before the lower authorities. 18. We have given a thoughtful consideration to the orders of the authorities below. Insofar as the treatment of the consideration of ₹ 5 crores is concerned, the dispute is settled and the same has to be taxed u/s. 45 of the Act. Admittedly, it is a fact that in spite of the findings of the Tribunal, the A.O. treated the same as income under the business head. The provisions of Section 45(3) of the Act clearly states that for the purposes of Section 48, the amount recorded in the books of accounts as the value of the capital assets shall be d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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