GVK JAIPUR EXPRESSWAY PVT. LTD.,JAIPUR vs. ITO, JAIPUR

PER SHRI KUL BHARAT, J.M.

This appeal by the assessee is directed against the order of ld. CIT (A)-35,

New Delhi/Camp Office at Jaipur dated 14.10.2016 pertaining to assessment year

2008-09. The assessee has raised the following grounds of appeal :-

1.1. That the ld. CIT (A) has further erred in holding that assessee has concealed the particulars of income in relation to short term capital gains by grossly ignoring the fact that assessee offered the same for taxation prior to any enquiry conducted by ld.AO, thus assessee has disclosed every particular of its income and therefore levy of penalty for concealing particulars of income at Rs. 9,00,000/- deserves to be deleted.

2 ITA No. 127/JP/2017 M/s. GVK Jaipur Expressway Pvt. Ltd.

1.2. On the facts and in the circumstances of the case ld. CIT (A) has grossly erred confirming the penalty levied by ld. AO relying upon the conclusion drawn in assessment proceedings without making independent enquiries in penalty proceedings when the penalty proceedings are separate and independent proceedings, thus the consequent order of levy of penalty is illegal and bad in law.

issue in the preceding year has been decided by this Tribunal in ITA No.

140/JP/2013. It is contended that there is no change in the facts and circumstances

in the present year also.

2.1. On the contrary, the ld. D/R opposed the submissions and supported the

orders of the authorities below.

2.2. We have heard rival contentions, perused the material available on record

and gone through the orders of the authorities below. We find that the Tribunal in

ITA No. 140/JP/2013 pertaining to assessment year 2007-08 has deleted the penalty

by observing as under :-

“3.2. We have heard rival contentions and perused the material available on record. It is not disputed that the assessee itself has offered for taxation the income which was claimed to be exempt in the return of income. It is submitted that it was because of the error which resulted in claiming the exempt income. Reliance is placed on the judgment of the Hon’ble Supreme Court in the case of Price Waterhouse Coopers

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Pvt. Ltd. vs. CIT, 348 ITR 306 (SC) wherein the Hon’ble Supreme Court has held that the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income. The Hon’ble Apex Court was of the opinion that on the peculiar facts, the imposition of penalty on the assessee is not justified. In the present case also during the course of assessment proceedings, the assessee realized that out of various investments in mutual fund some were redeemed and reinvested and the difference between the sale proceeds of the units of the mutual funds and the amount invested was wrongly considered as dividend income instead of short term capital gain. The ld. CIT (A) has rejected the appeal of the assessee by relying on the judgment of the Hon’ble Kerala High Court in the case of CIT vs. Kerala Transport Co., 134 Taxman 320 (Ker.). On the contrary, ld. Counsel has relied upon the judgment of the Hon’ble Delhi High Court in the case of CIT vs. Escorts Finance Ltd. (supra). It was pointed out by the ld. Counsel for the assessee that in other years also such mistake occurred and the department has accepted the explanation given by the assessee and has not imposed the penalty. This fact is not controverted by the revenue. Therefore, under the peculiarity of the facts in the present case, relying on the judgment of the Hon’ble Supreme Court (supra) and the judgment of the Hon’ble Delhi High Court (supra), we are of the view that the ld. CIT (A) ought not to have sustained the penalty. Therefore, we set aside the order of ld. CIT (A) and direct the AO to delete the penalty. The ground of the assessee is allowed.”

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The revenue has not brought any material contrary to the facts and circumstances of

the case. Therefore, taking a consistent view, we hereby direct the AO to delete the

penalty.

Order pronounced in the open court on 08/03/2017.

Sd/- Sd/- ( HkkxpUn] ½ ( dqy Hkkjr) (BHAG CHAND ) ( KUL BHARAT ) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Jaipur Dated:- 08/03/2017. d/ आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू

सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत

5 ITA No. 127/JP/2017 M/s. GVK Jaipur Expressway Pvt. Ltd.