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TMI Blog2019 (12) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... r under section 158 BFA (2) of the Income Tax Act, 1961 (for short "the Act") for the black period of 1/4/1989 to 30/01/2000, CallcapInvofin India P. Ltd ("the assessee") preferred this appeal, with a delay of 30 days. 2. Brief facts of the case are that during the financial year 1998-99, falling in the black period of 1/4/1989 to 13/01/2000, assessee earned income from transfer of shares in a company called M/s SRU knitters Ltd, which were acquired in the earlier years. The return of income tax for the assessment year 1999-2000 was not filed by the assessee due to nonreceipt of certain documents in support of the transfer of shares, but the said return of income for 1999-2000 was filed on 31/3/2000. 3. There was a search in the premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the undisclosed income on account of non-filing of return of income before the due date prescribed under section 139(1) of the Act. Initially, by order dated 29/01/2013, Ld. CIT(A) deleted the penalty imposed by the learned Assessing Officer on the ground that the penalty under section 158BFA(2) of the Act was not automatic and since the applicant did not have any intention to conceal the said capital gain for the purpose of taxation and had disclosed the investment in its final statements and had also filed return of income, though belatedly, there was no need to levy penalty. 7. When the revenue preferred appeal to the Tribunal challenging the deletion of the penalty, a coordinate Bench of this Tribunal by order dated 20/08/2015 set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of any mischief, a genuine case cannot be thrown away at the threshold on the aspect of limitation and that too when the rights of the parties are not crystallised under the law of limitation, we are of the considered opinion that by condoning the delay in this matter the highest that would happen is that a cause could be decided on merits and because of the delay of one month occurred in preferring the appeal, no prejudice is caused to the Revenue. It is the settled principle of law that when the technicalities are pitted against the delivery of substantial Justice, the former must give way to the letter. With this view of the matter we are inclined to condone the delay and proceed to hear the issue on merits. 11. Contention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion on behalf of the Revenue that the limitation period in this matter would start from the date of the order of the Hon'ble Delhi High Court inasmuch as the cause of action to levy the penalty had arisen only on the Hon'ble High Court restoring the additions made by the learned Assessing Officer and, therefore, it cannot be said that the levy of penalty is barred by limitation. He further submitted that the Hon'ble High Court held that on account of non-filing of return before the due date prescribed in section 139(1) of the Act, the gains arising on transfer of shares have to be treated as undisclosed income and such a finding of the Hon'ble High Court was not disturbed by the Hon'ble Supreme Court since the SLP was dismissed. He, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer were not sustainable whereas the Hon'ble High Court took the view that on account of non-filing of return before the due date prescribed in section 139(1) of the Act, gains arising on transfer of shares have to be treated as undisclosed income. It is not in dispute that the capital gains accrued to the assessee were disclosed in the financial statements of the assessee and also in the belatedly filed return of income. Ld. AR argues that this particular fact rules out any intention on the part of the assessee to conceal the capital gain could be inferred and since the levy of penalty is not automatic, learned Assessing Officer should have taken a pragmatic view and not levied penalty. 17. On a careful consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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