TMI Blog2015 (12) TMI 1897X X X X Extracts X X X X X X X X Extracts X X X X ..... it appears that the assessee was under bona fide belief that it was a long term asset as he was owning the property over a period of three year HELD THAT:- The admitted facts are that the Guest house sold by the assessee is a business asset on which depreciation has been allowed. Hence, there is no dispute that the gain arising on sale of the same would be assessable as Short term capital gain as per the provisions of sec. 50 of the Act. However, the assessee has treated the same as non-business asset at the time of filing return of income and accordingly computed the long term capital gain. The total income of an assessee for a particular assessment year is computed in accordance with the provisions of the Act by having regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct the AO to sustain the penalty to the extent of 100% of the tax sought to be evaded. Decided in favour of revenue. - S/SHRI B.R.BASKARAN, AM AND PAWAN SINGH, JM For the Appellant : Shri Sangram Gaikwad For the Respondent : Shri K R Laxminarayan ORDER PER B R BASKARAN, AM: The appeal filed by the revenue is directed against the order dated 19-02-2014 passed by Ld CIT(A)-40, Mumbai for assessment year 2010-11, wherein he has deleted the penalty of Rs. 3.44 crores levied by the assessing officer u/s 271(1)(c) of the Act. 2. The facts relating to the levy of penalty u/s 271(1)(c) of the Act are stated in brief. The assessee is an architect by profession and is also director in various companies of Raheja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to be acceptable to the AO and accordingly he held that the assessee has furnished inaccurate particulars of income. Accordingly he levied a penalty of Rs. 3.44 crores computed @ 200% of the tax sought to be evaded. The Ld CIT(A), however, deleted the penalty by holding that there was difference of opinion about the nature of Capital gain, i.e., whether it was long term capital gain or short term capital gain and it appears that the assessee was under bona fide belief that it was a long term asset as he was owning the property over a period of three years. He further placed reliance on the decision of Hon ble Bombay High Court in the case of ACE Builders Pvt Ltd (281 ITR 210) to hold that the provisions of sec. 50 shall not convert a lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings by filing revised return of income Accordingly he contended that the order of Ld CIT(A) should be upheld. 6. We have heard the rival contentions and perused the record. The admitted facts are that the Guest house sold by the assessee is a business asset on which depreciation has been allowed. Hence, there is no dispute that the gain arising on sale of the same would be assessable as Short term capital gain as per the provisions of sec. 50 of the Act. However, the assessee has treated the same as non-business asset at the time of filing return of income and accordingly computed the long term capital gain. It was submitted that the same was a mistake committed by the accountant. 7. However, as submitted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n u/s 54E nor he is contesting about the tax rate. 9. The Ld CIT(A) has taken the view that the assessee has voluntarily submitted the revised computation of income before the AO. However, the chronological event narrated by the assessing officer, which has also been discussed by us, would show that the assessee has deliberately avoided receiving the show cause notice and immediately furnished the revised computation of income. In our view, the same shows that the assessee has furnished the revised computation of income only after its detection by the assessing officer. 10. The Ld CIT(A) has also placed reliance on the decision rendered by the Hon ble Supreme Court in the case of Reliance Petroproducts P Ltd (322 ITR 158), wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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