TMI Blog2010 (5) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing 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. Therefore, he should have k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee 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, while supporting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er] 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. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to notice u/s. 148 of the Act that the assessee filed the return declaring the long term capital gain on sale of Vasai land at ₹ 1,26,38,496 and after claiming exemption declared capital gain of ₹ 50,08,496 and paid the tax thereon. Therefore, it cannot be said that the assessee acted in a bonafide manner since before detection of the same by the Assessing Officer during the A.Y. 2007-08 the assessee never came voluntarily before the Assessing Officer with a request to tax the long term capital gain during the A.Y. 2005-06. 12. The various decisions relied on by the learned counsel for the assessee are distinguishable and not applicable to the facts of the present case. In the case of D.M. Dahanukar (supra) till the A.Y. 1954-55, the assessee 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 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of loss and damage to its plant and machinery on replacement cost basis and (ii) a sum of ₹ 1,00,112 on account of loss of its finished or semi finished goods. The assessee company was paid a sum of ₹ 84,462 in the month of November/December, 1979 in respect of the former claim and a sum of ₹ 56,173 in respect of the latter. The assessee had claimed an amount of ₹ 1,00,112 on account of loss of stock due to fire. The ITO noted that the assessee had claimed double deduction of this amount of ₹ 1,00,112 since it was debited to the consumption of raw material account and subsequently the same amount was also debited to the Profit and Loss A/c. under the head goods lost in fire . When penalty was levied, the Tribunal cancelled the 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 soon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
