TMI Blog2010 (5) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. 4. Before the Assessing Officer it was argued that capital gain on sale of Vasai land was declared in original return for A.Y. 2005-06 to A.Y. 2007-08 because payments were received in those assessment years. It was submitted that till date the conveyance has not been done because the assessee along with other co-owners has not yet received the balance amount of ₹ 4,91,453. The sale agreement was made on 7th December, 2004. The assessee has duly declared his share of receipt amounting to ₹ 51,56,548 received before 31st March, 2005 in the return filed for A.Y. 2005-06 which was declared as long term capital gain. Similarly during A.Y. 2006- 07 the assessee has received an amount of ₹ 63,96,000 and during A.Y. 2007-08 the assessee has received ₹ 7,38,000 and these amounts were duly declared as long term capital gain. It was accordingly submitted that there was no concealment. 4.1 However, the Assessing Officer was not satisfied with the arguments advanced by the assessee. He observed that the assessee has filed return of income and declared 'nil' capital gain whereas the assessee has done a very big transaction of sale worth ₹ 2.6 crores. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain for the assessee was ₹ 51,66,548 and the assessee has invested the above amount in Nabard Capital Gain Bonds and claimed exemption u/s. 54EC. He submitted that it is quite possible that the Assessing Officer has gone through the details and accepted the method of computation filed by the assessee declaring the capital gain on receipt basis. He submitted that it is not a case of concealment but only shifting of income from one year to the other year. He referred to the decision of the Hon'ble Bombay High Court in the case of D.M. Dahanukar vs. CIT reported in 65 ITR 280, the decision of the Hon'ble Gujarat High Court in the case of BTX Chemicals Ltd. vs. CIT, reported in 288 ITR 196, the decision of Hon'ble Madras High Court in the case of CIT vs. Shri Saradha Textiles Pvt. Ltd. reported in 286 ITR 499 and the decision of the Punjab & Haryana High Court in the case of CIT vs. Jagjit Engineering Works Pvt. Ltd. reported in 275 ITR 239 and submitted that in view of the ratio laid down in the above decisions there is no concealment of income and the claim was made under mistaken bonafide belief and, therefore, no penalty is leviable. 7. The learned DR, on the other hand, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner] in the course of any proceedings under this Act, is satisfied that any person- (c) has concealed the particulars of his income or [* * *] furnished inaccurate particulars of [such income, or] [Explanation 1.-Where in respect of any facts material to the computation of the total income of any person under this Act,- (A) such person fails to offer an explanation or offers an explanation which is found by the [Assessing] Officer or the [***] [Commissioner (Appeals)] [or the Commissioner] to be false, or (B) such person offers an explanation which he is not able to substantiate [and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him], then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed." 10. We find the assessee during the course of penalty proceedings has offered an explanation and we have to see whether such explanation is a bonafide one or not. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was including his income from dividend in the return for the account year in which they were received and his assessments were completed accordingly. Subsequently, after the assessment for 1954-55 was completed he realised that dividends should be returned in the year in which they were declared and filed a revised return for the A.Y. 1954-55 including the dividend declared in that year. As the original assessment for that year had already been completed the dividend returned was assessed u/s. 34 in that year. Thereafter penalty proceedings were initiated and penalty was levied. It was under these circumstances, the jurisdictional High Court held that the assessee has neither concealed nor deliberately furnished inaccurate particulars and, therefore, the levy of penalty was held to be not justified. However, in the present case the assessee has not filed any revised return nor disclosed the full details in the note while computing the capital gain in the original return. Therefore, the decision of the jurisdictional High Court in the case of D.M. Dahanukar is not applicable to the facts of the present case. 13. Similarly in the case of Shri Saradha Textile Processors Pvt. Ltd. (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty on the ground that the double claim for that amount had been made due to a bonafide mistake on the part of the assessee company. When the Revenue challenged the decision of the Tribunal the Hon'ble Gujarat High Court held as under: "(ii) That the Tribunal, as a matter of fact, found that the double claim for an amount of ₹ 1,00,112 was made due to a bona fide mistake on the part of the assessee. No sooner was an entry made in the trading account of this year, than would it to affect the opening stock in the next year, and hence it could have been easily found out and would not have resulted in any advantage to the assessee. The penalty relatable to the disallowance of loss of ₹ 1,00,112 was rightly deleted by the Tribunal." Thus in the above case there was no benefit accruing to the assessee by claiming the deduction under bona-fide mistake. However, in the instant case the assessee's conduct cannot be said to be bona-fide. Therefore, this decision is also not applicable. 15. Similarly in the case of Jagjit Engineering Works Pvt. Ltd. (supra), we find during the course of assessment proceedings, relating to the assessment year 1979-80, the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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