TMI Blog2019 (7) TMI 1733X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the above factual and legal discussions narrated above, in our view the penalty order levied by assessing officer and confirmed by ld CIT(A) is not sustainable on factual as well as on legal aspect. Therefore, we direct the assessing officer to delete the entire penalty levied under section 271(1) (c) - Decided in favour of assessee. - ITA No. 3729/Mum/2017 - - - Dated:- 22-7-2019 - Shri Pawan Singh, Judicial Member And Shri M. Balaganesh, Accountant Member Appellant by : Shri Anuj Kisnadwala (C.A.) Respondent by : Shri Satish Rajore (Sr.DR) ORDER Pawan Singh, 1. This appeal by assessee is directed against the order of ld. Commissioner of Income Tax (Appeals)-50, [the ld. CIT(A)], Mumbai dated 22.03.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Further aggrieved, the assessee has filed the present appeal before us. 3. We have heard the submission of ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the revenue and perused the material available on record. At the outset of hearing, the ld. AR of the assessee submits that the ground of appeal raised by assessee is covered in assessee s group case in Radhakrishna Roadways Pvt. Ltd. vs. ACIT in ITA No. 3728/Mum/2017 dated 14.03.2019, wherein similar penalty was deleted. On merit, the ld. AR of the assessee submits that the loss has been lapsed and the assessee has not claimed set off of such loss. Accordingly, there is no evasion of tax on claiming and disallowance of such long term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the capital gain for the said year as Nil. No further appeal against such action/ treatment was filed by the assessee. The assessee before us has filed the copy of the ITR for AY 2018-19 wherein the assessee has shown the loss on account of long term capital loss has not been set off the assessee. Therefore, the assertion of the ld. AR for the assessee that there is no tax evasion on the part of the assessee as the disallowed loss has not been set off, which has been lapsed, is a convincible force. No contrary fact is brought by ld. DR for the revenue to our notice that the alleged disallowance of loss was set off by the assessee. 6. The undisputed facts are that the Assessing Officer while framing assessment u/s. 143(3) of the Act ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of the Assessing Officer to pass penalty order. In the case of Manjunath Cotton Ginning Factory (supra) and M/s. SSA s Emerald Meadows, ITA No. 38 of 2015 dated 23.11.2015, it has been held that no penalty can be imposed where one of the two limbs i.e. concealment of income and furnishing of inaccurate particulars of income on which penalty was proposed to be imposed is not mentioned. In the case of M/s. SSA s Emerald Meadows (supra) SLP filed in Hon'ble Supreme Court by the Department has also been dismissed. In the case of Shri Samson Perinchery (supra) Hon'ble Bombay High Court has held that penalty to be imposed on the ground/limb on which penalty has been initiated. Thus, in view of the ratio laid down by various c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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