TMI Blog2023 (9) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... - HELD THAT:- Perusal of the orders indicate that the CIT(A) and the Tribunal concurrently held that apparently there was a bona fide mistake made by the assessee owing to lack of documents at the time of filing of return of income. We find that the AO as rightly held by the CIT(A) and ITAT ought to have accepted the claim of the assessee that the claim of loss was not intentional. Moreover, as observed by the CIT(A) reduction in capital loss cannot be considered for imposition of penalty. What was also noted by the CIT(A) that the return of income was filed belatedly and hence capital loss could not be allowed to be carried forward and set off against income of subsequent year under this head. There was no incentive for returning cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 ITR 306 (SC) without appreciating that the facts of the present case are distinguishable? (C) Whether on the facts and circumstances of the case and in law, the Appellate Tribunal is justified in upholding the decision of the Ld. CIT(A) in holding that reduction in capital loss cannot be considered for imposition of penalty without considering Explanation 4 as per the amendment to section 271(1)(c) by Finance Act, 2002? 3. The facts in brief are as under: 3.1 A return of income was filed for assessment year 2014-15 on 03.09.2014 declaring a total income of Rs. 26,370/- and long term loss at (-) Rs. 7,82,30,784/-. Order under Section 143(3) was passed on 16.08.2016 on total income of Rs. 43,69,774/-. On a notice, a revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a bona fide mistake is totally baseless and the intentional wrong claim of loss is quite visible especially when the details for filing return of income was in possession of her father and the same was gathered with the help of her husband, who is Chartered Accountant by profession. Moreover, the process of filing of return of income was done by a renowned practicing Chartered Accountant. Therefore, the claim of bona fide mistake is totally baseless and not acceptable at all. . If the case for the assessment the A.Y. 2014- 2015 was not selected for scrutiny under CASS, the issue of wrong claim of huge capital loss would not have been come to light and the capital gain would not have been subjected to tax in the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accountant, he has no grip on the subject. 3.3 The CIT(A) based on her submissions held as under: 4. I have carefully considered the facts on record and submissions of the Ld. AR including the decisions relied upon by him. 4.1 The only grounds of appeal raised by the appellant pertains to imposition of penalty under section 271(1)(c). Undoubtedly, the appellant has filed her return of income on 03.09.2014 declaring total income of Rs. 26,370/- and claiming refund of Rs. 13,73,120/-. When the case was scrutinized, the appellant has furnished revised computation of income declaring long term capital gains of Rs. 44,41,468/- instead of loss in the share of Rs. 7,82,30,784/-. The AO completed the assessment under 143(3) after asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale deeds and on account of husband of appellant who is also a CA but not practicing. The Hon'ble jurisdictional High Court in the case of BTX Chemical Pvt. Limited v/ s CIT(2007) 288 IT 196 (Guj) relied upon by the Ld. AR, has held that penalty could not be imposed in respect of the mistake committed by the CA due to oversight. Further, the Ld AR relied upon a decision, of Hon'ble Supreme Court in the case of Price Waterhouse Coopers Pvt.Ltd. v/s CIT (2012) 348 IT 306 (SC), wherein it has been held that no penalty is imposable in respect of the inadvertent and silly mistake. The case of appellant also falls in this category because the entire sale consideration was considered when the share of the appellant was only 5%. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fact and circumstances of the case, I am of the considered view that the long-term capital gains of Rs. 43,69,774/ finally added to the returned income of Rs. 26,370/- is to be treated as income in respect of which inaccurate particulars have been furnished. 4. Perusal of the reasonings as aforesaid indicate that the assessee had explained before the AO the reasons for bona fide error in computing long term gains. The CIT(A) found that on perusal of the original working of long-term capital gain, the entire sale consideration of five properties was considered and from that 95% was treated as cost of acquisition resulting into loss. The share of the assessee was only 5% but by mistake in the absence of purchase and sale deeds, the en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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