TMI Blog2022 (11) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... )(c) is not leviable on this account also. In this view of the matter also, in our considered opinion and on the facts and circumstances of the case, the assessee s case does not deserves to be visited the rigors of penalty u/s 271(1)(c) of the Act. Hence, we set-aside the order of the CIT(A) and deleted the penalty. Appeal filed by the assessee stands allowed. - ITA No. 2114/DEL/2019 - - - Dated:- 18-10-2022 - SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI N. K. CHOUDHRY , JUDICIAL MEMBER Assessee by : Sh. Alok Mittal , CA Revenue by : Sh. Kanav Bali , Sr. DR ORDER PER SHAMIM YAHYA , AM This appeal by the assessee is directed against the order of the Ld. CIT(A)-23, New Delhi, dated 10.01.2019 pertaining to Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of said revised return, the assessment was framed pursuant to 153A notice issued on 14.06.2016. The appellant filed his return of income for the assessment year under consideration (AY 2015-16) on 27.08.2015 declaring income at Rs.10,95,740/-. In this return of income, the appellant had disclosed long-term capital gain of Rs.47 lakhs purportedly from the sale of shares of M/s, Delta leasing Ltd. and claimed the same amount as exempt under section 10(38). This return of income was processed under section 143(1). On 16.03.2016, a Search Seizure (S S) action was carried out in Shri Prem Arora group of cases. The case of appellant was also covered under said S S action. During the course of search/survey an Annexure A-6 (being a com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total Amount of Share Sold 23,331,400.00 Less amount invested 1,000,000.00 Net Capital Gain/Share Profit 22,331,400.00 Commission Payable @ 5% (2,23,31,400/x5%) 1,116,570.00 LESS: 1 Paid at the time Booking 300,000.00 2 Excess paid as above 368,600.00 3 Brockrege @ 2.5% 58, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the above reproduced content is of the file in the impounded hard disk, the AO concluded that the appellant was getting accommodation entries in form of long-term capital gain purportedly earned through purchase and sale of sales of Delta leasing Finance Ltd. by paying a commission of 5% to Shri Prem Arora. Upon asking the explanation of the appellant regarding payment of commission for obtaining accommodation entries in form of above stated long-term capital gain, purportedly earned through purchase and sale of sales of Delta leasing Finance Ltd., the appellant denied payment of any such commission. However, the AO rejected explanation of the appellant and made an addition of Rs.- being amount of commission, paid @5% to obtain ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d case law. The ratio emanating that to the extent of income returned u/s 153A, the penalty u/s 271(1)(c) cannot imposed. Hence, we are of the considered opinion that the Ld. CIT(A) has erred in distinguishing the aforesaid decision of the Hon ble jurisdictional High Court. Furthermore, it is noted that while initiating penalty proceeding, the Assessing Officer himself is not sure as to what is the charge. In one place, he is mentioning that penalty has been levied for furnishing of inaccurate particular of income and at another place; he is mentioning that penalty has been levied for concealment of particulars of income. It has been held by higher courts that unless the charge upon the assessee is specific, penalty u/s 271(1)(c) is not lev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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