TMI Blog2023 (4) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... sult, the grounds of appeal raised by the assessee are allowed. - ITA No.92/SRT/2023 - - - Dated:- 30-3-2023 - Shri Pawan Singh, Judicial Member For the Assessee : Shri Hiren R. Vepari, C.A For the Revenue : Shri Vinod Kumar, Sr-DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of Ld. Commissioner of Income-tax (Appeals)-13, Ahmedabad [for short to as Ld. CIT(A) ] dated 16.01.2023 for assessment year 2012-13, which in turn arises out against the penalty levied by Assessing Officer/ Income tax Officer (INT.Tax) Surat, under section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) dated 07.09.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from Surat Mercantile Co-Operative Bank Ltd., in his assessment order dated 23.12.2019. 3. The Assessing Officer also initiated penalty under section 271(1)(c) of the Act. The notice under section 274 r.w.s. 271(1)(c) of the Act was issued to the assessee on 10.02.2021. In response to such show cause notice, assessee filed his reply dated 27.04.2021 and relevant portion of assessee s reply is recorded by Assessing Officer in para-4.1 of his penalty order. The assessee in his reply submitted that assessee offered capital gains and also paid tax of Rs.9.60 lakh during the assessment proceedings by self-assessment and communicated before the Assessing Officer, which clearly showed that assessee has no mala fide intention to avoid pay tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed, the entirety of circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars of his income or had deliberately furnished inaccurate particulars. Further, assessee also relied on the decision of Hon'ble Apex Court in the case of Sri T. Ashok Pai Vs CIT (101 Taxman 340-SC) and in the case of Dilip N Shroff Vs JCIT (161 Taxman 218 SC). 5. The Ld. CIT(A) after considering the submission of assessee upheld the penalty levied by Assessing Officer by referring the decision of Hon'ble Delhi High Court in the case of CIT vs. Zoom Communication (2010) 327 ITR 510 (Del). The Ld. CIT(A) also held that assessee cannot take plea that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f asset done as on 01.04.1981 through registered valuer and worked out the capital gains and paid due tax before completion of assessment. The intention of assessee was never either to evade the tax or to conceal the income on sale of ancestral property. The Ld. AR for the assessee submits that in response to show cause notice, the assessee filed reply before Assessing Officer vide reply dated 27.04.2021. In the reply, the assessee has shown sufficient caused for not levying penalty. The reply of assessee was not accepted by the Assessing Officer who levied penalty of Rs.3,35,137/- being 100% of tax sought to be evaded. To support his submission, Ld. R for the assessee relied upon the following case law: CIT vs. Ashok Taker [2008] 170 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see on coming to know about taxable of capital gains offered the capital gains for taxation and paid due tax before completion of assessment and relied various case law as recorded above. I find merit in the submission of Ld. AR of the assessee that assessee during assessment proceedings offered the LTCG of Rs. 16,26,878/- and paid due tax. 9. I find that Hon'ble Delhi High Court in the case of Ashok Taker (supra) held that during assessment proceedings, when the assessee surrendered certain amount for taxation and submitted that same was done in order to buy peace. The Assessing Officer added such income and initiated penalty under section 271(1)(c) of the Act. On first appeal before the penalty was deleted. The order of ld CIT(A) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment it was noted that in Schedule 9, relating to Administration and other Expenses, forming part of Profit Loss Account, a sum of Rs. 1,21,49,861 had been debited under the head Equipment written off . It was stated by the assessee that due to oversight, this amount was not added back in computation of income and the same ought to have been adjusted in the block of assets. The aforesaid amount was added back to the income of the assessee, with its consent. It was further noticed that another sum of Rs. 1 lakh had been debited under the head Income-tax paid , in the above-referred Schedule relating to Administration and other Expenses. The assessee claimed that due to oversight, this amount was not added back in the computation of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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