SIYA DULARI SOPRA,JAIPUR vs. ITO WARD 6(3), JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC’’ JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ds le{k BEFORE: Hon’ble SHRI SANDEEP GOSAIN, JUDICIAL MEMBER vk;dj vihy la-@ITA No. 142/JP/2024 fu/kZkj.k o"kZ@Assessment Year : 2012-13

cuke Smt. Siya Dulari Sopra The ITO Vs. K-30, Tonk Road, Income Tax Colony Ward 6(3) Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AUUPS 3380 D vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri Sharwan Kumar Gupta, Adv. jktLo dh vksj ls@Revenue by: Smt. Monisha Choudhary, Addl. CIT-DR lquokbZ dh rkjh[k@Date of Hearing : 21/03/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 22 /04/2024 vkns'k@ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 26-12-2023, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2012-13 raising therein following grounds of appeal. ‘’1.1 The impugned penalty order u/s 271(1)(c ) dated 15-12-2021 as well as notices are bad in law and on facts of the case, being barred by limitation, for want of jurisdiction and various other reasons and hence the same may kindly be quashed. 1.2. The ld. CIT(A) has grossly erred in law as well as on the facts of the case order in passing the Ex-party order without providing the adequate and reasonable opportunity of being heard to the assessee in gross breach of law and are bad in law, invalid, illegal and on facts of the

2 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR case, and hence the same may kindly be quashed and the resultant addition may kindly be deleted in full.

2.1 Brief facts of the case are that the assessee lady is a regular IT assessee and having income from business and other sources for the year under consideration. She filed her return of income originally for the year under consideration declaring total income of Rs.1,70,160/- on 30.03.2013. The AO reopened the case of assessee by issuing the notice u/s 148 on dt. 27.03.2019 on the ground that assessee has sold an immovable property on dt. 16.07.2011 for amounting to Rs.29,50,000/- and Sub Registrar has evaluated the property at Rs.29,50,000/-. In response to the notice u/s 148, the assessee has disclosed the Long Term capital Gain of Rs.25,58,108/- in the return filled on dt. 30.09.2019 declaring the total income of Rs.27,28,260/- and paid tax with interest. The AO assessed the income as filed u/s 148 and completed the assessment at Rs. 27,28,260/- u/s 143(3)/148 on dt. 23.11.2019. However, AO has initiated the penalty proceedings u/s 271(1)© of the Act by stating in the assessment order that she is liable to pay penalty u/s 271(1)© for which separate proceedings are being initiated. Assessee in response to the penalty notice filled a detailed reply

3 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR on dt.27.02.2020 to AO (placed at PB17-18) who was not satisfied with the reply of the assessee and imposed the penalty of Rs.5,22,881. 2.2 In first appeal, the ld. CIT(A) confirmed the penalty. 2.3 Hence, aggrieved by the orders of the lower authorities, the assessee has approached this Bench to delete the penalty by filing following written submission. “1. No assessment on return filled u/s 139, while the assessment on 148 return where neither any concealment of income nor furnished inaccurate particulars of income: It is submitted vital things that the ld. AO has issued the notice u/s 148 for filling the return for the purpose that if any income has been remained to be declared in the original return if filled, because the time limit to revise the return has gone. Hence in response thereto the assessee has filed the return u/s 148 declaring all the income and particulars and paid with due tax with all the interest thereon, which has also been accepted and assessed by the ld. AO who has not found any mistake, defect or inaccurate particulars or concealed income in that return. Under all these facts how the penalty u/s 271(1)(c) can be imposed when the things as “furnishing inaccurate particulars or concealed income “ are absent. The ld. AO nowhere stated that the assessment is being done on the return filed u/s 139, once the notice u/s 148 has been issued then the return filled u/s 39 is abated. Here imposing the penalty u/s 271(1)(c) by the ld. AO is showing that is influenced or referring the return filed u/s 139 otherwise he could not have initiated the penalty. If he is of the view that the penalty is for furnishing inaccurate particulars or concealed income in the return filed u/s 139 then also no penalty can be imposed because neither the assessment was made on the return filled u/s 139 nor now can be imposed being barred by limitation. Looking to these the penalty so imposed illegal, invalid, void-ab-inito and liable to be deleted. In case of CIT v/s Pushpendra Surana 264 CTR 204(Raj.) 2014 it has been held that Penalty u/s 271(1)(c)—Concealment of income—Pursuant to notice issued for reopening of assessment assessee filed revised return of income declaring long term capital gain on account of sale of agricultural land—Revised return was accepted by Assessing authority— Penalty imposed u/s 271(1)(c) holding that there was deliberate concealment of income by assessee—CIT(A) deleted penalty imposed by

4 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR AO—Tribunal affirmed findings of CIT(A)—Held, when income declared by the assessee from long term capital gain by selling agricultural land, disclosed by assessee in his revised return of income was accepted by AO—No material available on record by which there could be an inference drawn that it was a deliberate concealment on part of assessee or furnishing of inaccurate particulars of income—Concurrent and detail findings rendered by CIT(A) and Tribunal to that effect—Penalty was rightly set aside by CIT(A)—Appeal dismissed Appeal—Substantial question of law—Penalty imposed u/s 271(1)(c) was set aside by CIT(A) and tribunal—Appeal against—Held, matter was considered in detail by CIT(A) and tribunal—No question of law arises in appeal—Appeal dismissed Here is the same position and directly covered by the above jurisdictional H.C decision. In the case of Pr.CIT vs. NEERAJ JINDAL (2017) 98 CCH 0207 DelHC (2017) 147 DTR 0342 (Del),(2017) 293 CTR 0298 (Del),(2017) 393 ITR 0001 (Delhi) it has been held that Penalty u/s 271(1)(c)— Concealment of income—Applicability of provision—AO passed penalty order u/s 271(1)(c), by imposing penalty being 100% of amount of tax sought to be evaded on concealed income—CIT (A) deleted penalty and tribunal confirmed order of CIT (A)—Dispute arose in this case was whether or not u/s 271(1)(c) as it stood prior to insertion of Explanation 5, levy of penalty was automatic if return filed by assessee u/s 153A discloses higher income than in return filed u/s 139(1)—Held, when AO had accepted revised return filed by assessee u/s 153A, no occasion arises to refer to previous return filed u/s 139—For all purposes, including for purpose of levying penalty u/s 271(1)(c), return that had to be looked at was one filed u/s 153A—In fact, second proviso to Section 153A(1) provided that “assessment or reassessment, if any, relating to any assessment year falling within period of six assessment years referred to in this sub-section pending on date of initiation of search u/s 132 or making of requisition u/s 132A, as case might be, should abate’’—Section 153A was in nature of second chance given to assessee, which incidentally gave him opportunity to make good omission, if any, in original return— Once AO accepts revised return filed u/s 153A, original return u/s 139 abates and became non-est—“Concealment” had to be seen with reference to return that it was filed by assessee—Thus, for purpose of levying penalty u/s 271(1)(c), what had to be seen was whether there was any concealment in return filed by assessee u/s 153A,

5 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR and not vis-a vis original return u/s 139—Question of law answered in favour of assessee—Revenue's appeals dismissed. Also refer the decision of this Honble Bench in the case of Pooja Upadhyay vs. ITO ITAT JAIPUR ITA No. 258/JP/2022 April 17, 2023 (2023) 67 CCH 0510 JaipurTrib (2023) 105 ITR (Trib) 0549 (Jaipur) 2. No concealment no penalty: In this respect it is submitted that the penalty u/s 271(1)© can be levied only, when there is any concealment, if there is no concealment, no penalty is liveable. The facts and circumstance of the present case clearly shows that the appellant has not concealed any income in the return filled u/s 148, he herself suomoto declared the LTCG and assessed as it is by the ld. AO. The Ld.AO neither in the assessment order nor in the penalty order at nowhere stated or proved that the assessee has concealed the particulars of his income or furnished inaccurate particulars of such income in the return of income filed in response to notice u/s 148. As in the assessment order the ld. AO has stated or alleged that the assessee has concealed the income and furnished inaccurate particulars of income. However this allegation is absolutely incorrect or wrong and contradictory in his own finding. Because the ld. AO has completed the assessment on the ITR filled u/s 148 where all the particulars and income shown correctly and accepted by the ld. AO, if so then how the ld. AO can say that the assessee has concealed the income and furnished inaccurate particulars of income. For this allegation there must be difference between the returned income and assessed income, and he has to bring on the record the inaccurate particulars. Further the ld. AO nowhere in the assessment order has used the word “concealed the income and furnished inaccurate particulars of income” for 139 ITR rather used for 148 ITR vide page 2 of the assessment order(PB11). Hence there was neither concealment of income and furnished inaccurate particulars of income.

Kindly refer latest judgment of Hon’ble Supreme Court in the case of CIT v/s Reliance Petroproducts (P) Ltd 322 ITR 158(SC), wherein it has been held that “disallowance of claim for deduction-In order to attract the provisions of S. 271(1)©, there has to be concealment of income or furnishing of inaccurate particulars of his income by the assessee-In the instant case assessee claimed deduction of interest on loans taken by it for purchase of shares- AO disallowed such interest-

6 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR Admittedly, in information given in the return was to be found incorrect or inaccurate-Hence the assessee cannot be held guilty of furnishing inaccurate particulars- Making an incorrect claim in law cannot tantamount to furnishing of inaccurate particulars –Merely because the claimed deduction which has not been accepted by the revenue, penalty u/s 271(1)© is not attracted-If the contention of the Revenue is accepted, the assessee would be liable for penalty u/s 271(1)© in every case where the claim made by the assessee is not accepted by the for any reason-That is clearly not the intendment of the legislature.” In the present case there is same position because the assessee has herself declared the transaction of capital gain/loss in the return of income filled in response to notice u/s 148. For imposition of penalty under section 271(1)(c),discretion is vested with the Ld.AO to levy the penalty, but it cannot be inferred from the said provision that the liability for penalty is automatic. Each provision of penalty has to be construed independently keeping in view the language employed therein. Accordingly the provisions of section 271(1)(c) providing for imposition of penalty is discretionary and not mandatory. Further, where the difference between the assessed income and income shown in the return of income is the result of additions based on difference of opinion or debatable issue without any material or circumstances leading to the reasonable conclusion that the amount of difference does represent the income of the assessee penalty are not leviable. The mere fact that the amount has been assessed is not sufficient for the purpose of levying penalty but the circumstances must show that there was conscious concealment of income or conscious furnishing of inaccurate particular thereof on the part of the assessee with a view to evade tax. In the present case neither of the above facts existed nor there is circumstances which could lead any reasonable conclusion that the amount of addition sustain represented real income of the assessee. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceedings, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct of contumacious or dishonest, or acted in conscious disregard to its obligation, Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty when there is a difference in

7 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR opinion or the issue is debatable issue and the explanations furnished were not acceptable to the Ld. AO. 3. No Melafide intention: The reason for not disclosing the capital gain in the original return is that the sale consideration was taken in the joint account maintained by assesee with her husband and all transactions in this account was related to her husband. The capital gain was long term and amount was to be used in other residential house and she was depended on her husband and was not known about the income tax proceedings and at that time there was some urgent need to the husband of funds/money and he used that money for his business for very short period and asked to the assessee to return the money after some time and assured that the other residential house shall be purchased before filling the return of income. But by one and other reason the husband of the assessee has not returned the money to the assesse and she could not invest the money and while filling the return of income originally she forget to tell to the counsel about the sale of plot nor the counsel has asked about the same. Because of this very reason this transaction therefore was mistakenly left to shown in ITR of assessee filed u/s 139. When assessee received notice u/s 148 form the Income Tax Department and check her document this fact come to know that capital gain on sale of land sold in AY 2012-13 left to disclosed and she herself disclosed this transaction in the return filed under section 148 for AY 2012-13 on 30.09.2019 and paid self assessment tax of Rs 10,29,050/- including interest payable of Rs 5,16,288/- . Due to these bonafide reason assessee has neither declared this transaction in his return of income filled u/s 139 because the time limit has already been expired nor he could have made any investment u/s 54/54F, otherwise she could have made investment u/s 54/54F in new assets. Rather she incurred a heavy loss of tax and interest of Rs 5,16,288/- and also incurred loss of interest on money till 7 years because if she could have given these money on interest she could have earned interest of 24,78,000/-(i.e @12% PA Rs.3,54,000X7) easily. Due to these the assessee has incurred heavy loss. Thus there was no fault of the assessee but all the circumstances were beyond control to the assessee. Hence due to confusion and bonafide mistake a poor assessee who is also being a lady should not be penalized

8 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR and suffered. And as she has received the notice u/s 148 she has immediately declared the same without and any delay. Thus there was no benefit to the assessee but she has to bear extra burden of interest and tax. Concealment of income and furnishing inaccurate particulars of income both are different. Both refer to deliberate act of the assessee and as per the above facts, situation and circumstances there was no deliberate act on the part of assessee. A mere omission or negligence (which was not in the hands of the assessee) would not constitute a deliberate act of suppression or suggestion falsi. In the assessment the ld. AO has not made any addition on the returned income u/s 148. 4. No fault of the assessee but circumstances were beyond control to the assessee: Further while penalizing any person a authority should consider the facts and circumstance of the case and compulsion of the assessee. All these facts and evidences as above, the appellant made a surrender/agreed only with a view, to purchase peace of mind and to avoid litigation and it was not an agreement to the alleged fact of concealment or of furnishing inaccurate particulars, as purportedly misunderstood by the authority below. As neither the appellant has concealed the particulars of his income nor furnished inaccurate particular of income. The assessee has agreed to surrender due to being a lady. Hence for just to avoid practical difficulties, and just to buy peace of mind and to avoid further litigation, she has decided to surrender the same, thus there is no question of concealment of income or furnishing inaccurate particulars thereof. Therefore, penalty under section 271(1)(c) could not be levied for this reason. It is settled that there can’t be any levy of penalty merely on surrender by the assessee. Kindly refer Sudarsahn Silk & Sarees v/s CIT 216 CTR 12(SC)/300 ITR 205(SC) followed by Rajasthan High court in CIT V/S Unique Precured Retraders 13 DTR 215(Raj) also refer Suresh Chand Mittal 251 ITR 9 (SC). The factual matrix and principle laid down in these cases is almost similar to the case in hand hence fully applicable here also. This decision given by the highest court, is binding under article under 141 of the Constitution on all the subordinates authorities. This decision has also been followed in CIT vs Suraj Bhan 203 CTR 230 (P&H), Also refer ACIT v/s Madan Lal Gaggar 291 ITR 465(Raj.), CIT v/s Sant Das Nihal

9 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR Chand 135 CTR 174(Raj.), CIT v/s Harsh Talwar 335 ITR 20(Del), CIT v/s Cafco Syndicate Shipping 294 ITR 134(Mad), CIT v/s Careers Education & Infotech (P) Ltd 336 ITR 257(P&H). In the case of CIT vs. SURESH CHANDRA MITTAL (2001) 251 ITR 0009 (SC) held that Penalty under s. 271(1)(c)—Concealment— Revised return filed showing higher income—Assessee surrendered the income after persistent queries by AO—However, revised returns have been regularised by Revenue—Explanation of the asessee that he has declared additional income to buy peace and to come out of vexed litigation could be treated as bona fide—Penalty rightly cancelled—No interference warranted—CIT vs. Suresh Chandra Mittal (2000) 158 CTR (MP) 26 : (2000) 241 ITR 124 (MP) affirmed In the case of CIT vs. Sas Pharmaceuticals 335 ITR 0259(Del) held It is to be kept in mind that s. 271(1)(c) is a penal provision and such a provision has to be strictly construed. Unless the case falls within the four corners of the said provision, penalty cannot be imposed. Sub-s. (1) of s. 271 stipulates certain contingencies on the happening whereof the AO or the CIT(A) may direct payment of penalty by the assessee. Sec. 271(1)(c) authorizes imposition of penalty when the AO is satisfied that the assessee has either : (a) concealed the particulars of his income; or (b) furnished inaccurate particulars of such income. It is not the case of furnishing inaccurate particulars of income, as in the IT return, particulars of income have been duly furnished and the surrendered amount of income was duly reflected in the IT return. The question is whether the particulars of income were concealed by the assessee or not. It would depend upon the issue as to whether this concealment has reference to the IT return filed by the assessee, viz., whether concealment is to be found in the IT return. The words ‘in the course of any proceedings under this Act’ are prefaced by the satisfaction of the AO or the CIT(A). When the survey is conducted by a survey team, the question of satisfaction of AO or the CIT(A) or the CIT does not arise. One has to keep in mind that it is the AO who initiated the penalty proceedings and directed the payment of penalty. He had not recorded any satisfaction during the course of survey. Decision to initiate penalty proceedings was taken while making assessment order. It is, thus, obvious that the expression ‘in the course of any proceedings under this Act’ cannot have the reference to survey proceedings in this case. It necessarily follows that concealment of particulars of income or furnishing of inaccurate particular of income by the assessee has to be in the IT return filed by it. The assessee can furnish the particulars of income in his return and everything would depend upon the IT return filed by the assessee. This

10 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR view gets supported by Explns. 4 as well as 5 and 5A of s. 271. Obviously, no penalty can be imposed unless the conditions stipulated in the said provisions are duly and unambiguously satisfied. Since the assessee was exposed during survey, may be, it would have not disclosed the income but for the said survey. However, there cannot be any penalty only on surmises, conjectures and possibilities. Sec. 271(1)(c) has to be construed strictly. Unless it is found that there is actually a concealment or non- disclosure of the particulars of income, penalty cannot be imposed. There is no such concealment or non-disclosure as the assessee had made a complete disclosure in the IT return and offered the surrendered amount for the purposes of tax.—CIT vs. Mohan Das Hassa Nand (1983) 141 ITR 203 (Del) and CIT vs. Reliance Petroproducts (P) Ltd. (2010) 230 CTR (SC) 320 relied on. 5.1 Assessment and penalty are separate proceedings: It is pertinent to note that the AO has levied the penalty for concealment of income & furnishing inaccurate particulars only & only on the basis of findings recorded by it in the body of the assessment order, he has not a single word about the discussion or surrender made during the course of remand proceedings. It is settled that assessment and penalty proceedings are separate and distinct from each other. For a penalty AO must bring more material to establish positive concealment. Kindly refer recent decision in Dilip N. Shroff vs. JCIT 291 ITR 519 (SC), where it has been held that Primary burden of proof is on revenue; even when burden is required to be discharged by an assessee, it would not be as heavy as in prosecution cases; before a penalty can be imposed, the entirety of circumstances must reasonably point to conclusion that disputed amount represented income and that assessee had consciously concealed the particulars of his income or had furnished inaccurate particulars thereof. In this case it has also been held that cl.c of S. 271(1) of the IT Act 1961, categorically states that penalty would be leviable if the assessee conceals particulars of his income or furnish inaccurate particulars thereof. But by reason of such concealment or furnishing of inaccurate particulars alone, the assessee does not ipso facto become liable for penalty. Imposition of penalty is not automatic. Not only is the levy of penalty discretionary in nature but the discretion is also required to be exercised on the part of the AO keeping the relevant factors in mind. Some of those factors, apart from being inherent in nature of penalty proceedings , inhere on the face of the statutory provisions. Penalty proceedings are not to be initiated to

11 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR harass the assessee. The approach of the AO in this behalf must be fair and objective. “ Concealment of income” and “ furnishing of inaccurate particulars” are different. Both Concealment furnishing of inaccurate particulars refers to deliberate acts on the part of the assessee. A mere omission or negligence would not constitute a deliberate act of suppressio veri or suggestio falsi. 5.2 In Anwar Ali 76 ITR 696 (SC) it has been held that it cannot be said that the finding given in the assessment proceeding for determining or computing the tax is conclusive. However it is good evidence. Before penalty can be imposed the entirety of circumstances must point to the conclusion that the disputed amount represented the income and that the assessee has consciously concealed the particulars of his income or has deliberately furnished inaccurate particulars. 5.3 Also refer Durga Kamal Rice Mills vs. CIT 265 ITR 25 (Cal.), CIT v/s Ishtiaqu Hussain 232 ITR 673 (ALL) and 11 TTJ 462 (JP), 21 TW 427 (JP). The AO failed to bring any material whatsoever by making independent inquires to support the finding of concealment of income & furnishing of inaccurate particulars. The AO made addition on presumption, suspicion and without bringing any positive evidence on record . Kindly refer. CIT v/s Santosh Finaciaries 274 ITR 742(Ker). 8.1 No penalty can be imposed if the facts and circumstances are equally consistent with the hypothesis that the amount does not represent concealed income as with the hypothesis that it does. If the assessee gives an explanation which is unproved but not disproved, i.e., it is not accepted but circumstances do not lead to the reasonable and positive inference that the assessee’s case is false, the Explanation cannot help the department because there will be no material to show that the amount in question was the income of the assessee - National Textiles v. CIT [2001] 249 ITR 125 (Guj.).

Further when the assessee has paid all the due tax, with interest voluntary and has not litigated the matter further than the penalty should not be levied looking to the cooperation and honesty of the assessee with the department. If still penalty is levied the belief of the assessee’s demoralized. “

12 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR 2.4 On the other hands the ld. DR supported the order of the lower authorities

2.5 After carefully considering the Penalty order, CIT(A) order and written submission of the ld. AR, we observed that the AO has neither mentioned in the assessment order nor in the penalty order as to the filing of income u/s 148 of the Act that the assessee has furnished any inaccurate particulars or concealed any income. It is also observed that the AO has not stated that the penalty is being imposed on the original return or addition made in original assessment if any. When the assessee has suo motu offered the entire income in the return filled u/s 148 and paid all the tax with interest and the AO himself accepted and assessed the same as it is and subsequent filling the ITR u/s 148 has no meaning of the original ITR filed u/s 139 of the Act which is automatically abated and thus no penalty is liable to be imposed on the assessee. To this effect, we rely on the judgment of Honble Jurisdictional High Court in the case of CIT v/s Pushpendra Surana 264 CTR 204(Raj.) 2014 wherein it has been held that Penalty u/s 271(1)(c)—Concealment of income— Pursuant to notice issued for reopening of assessment assessee filed revised return of income declaring long term capital gain on account of sale of agricultural land—Revised return was accepted by Assessing authority— Penalty imposed u/s 271(1)(c) holding that there was deliberate concealment of income by assessee—CIT(A) deleted penalty imposed by AO—Tribunal affirmed findings of CIT(A)—Held, when income declared by the assessee from long term

13 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR capital gain by selling agricultural land, disclosed by assessee in his revised return of income was accepted by AO—No material available on record by which there could be an inference drawn that it was a deliberate concealment on part of assessee or furnishing of inaccurate particulars of income— Concurrent and detail findings rendered by CIT(A) and Tribunal to that effect— Penalty was rightly set aside by CIT(A)—Appeal dismissed. Appeal— Substantial question of law—Penalty imposed u/s 271(1)(c) was set aside by CIT(A) and tribunal—Appeal against—Held, matter was considered in detail by CIT(A) and tribunal—No question of law arises in appeal—Appeal dismissed. The Bench also draws inference to the Co-ordinate Bench judgment in the case of Pooja Upadhyay vs. ITO ITAT JAIPUR ITA No. 258/JP/2022 April 17, 2023 (2023) 67 CCH 0510 Jaipur Trib (2023) 105 ITR (Trib) 0549 (Jaipur) where it has been held as under:

‘’7. We have heard the rival contentions and perused the material placed on record. It is not in dispute that in the present case, notice u/s 133(6) was issued on 08.03.2019 immediately thereafter the assessee voluntarily deposited the tax along with the computation of income in response to the said notice vide letter dated 25.03.2019. It only after this the AO issued notice u/s 148 (i.e. on 30.03.2019). The assessee on his own after receiving notice u/s 148 voluntarily declared the income in ROI and paid taxes of thereon i.e. even before providing reason recorded for the escapement of income. The aforesaid explanation given by the assessee through ROI was neither rejected nor it was held to be mala fide by the AO and once the AO had failed to take any objection in the matter, the offer so made came from the assessee on its own and was a voluntary offer made i.e. without any detection and this voluntary action of the assessee cannot be considered as equivalent to providing inaccurate particulars of income or concealing the particulars of Income. The similar

14 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR view is taken the jurisdictional high court in the case of CIT vs. Pushpendra Surana (2014) 264 CTR 0204 (Raj) wherein it was held that:

“6. In our considered view, the CIT (Appeals) and so also the Income Tax Appellate Authority both have considered the matter, in detail, and finally arrived at a conclusion that the income declared by the assessee from the long term capital gain by selling agricultural land, disclosed by the assessee in his revised return of Income was accepted by the Assessing Authority and there was no material available on record by which there could be an inference drawn by the authority that it was a deliberate concealment on the part of the assessee and it could not be considered that there was an inaccurate particulars of income that was made the basis for inflicting penalty upon the assessee in exercise of powers conferred u/S.271(1)(c) of the Act. 7. We do not find any substance in the submissions made by counsel for appellant and apart from that even if there appears some substance, this court has a limited scope in the instant appeal u/S.260A of the Act, to examine if a substantial question of law arises for consideration. 8. Taking note of the submissions and the order passed by the CIT (Appeals) and the Income Tax Appellate Tribunal, in our considered view, no substantial question of law arises in the instant appeal which may require consideration. 9. Consequently, the appeal is wholly devoid of merits and accordingly dismissed.”

Since, the fact of the above case and facts of the case on hand being similar and the ld. DR did not controvert the basic facts placed on record, the Bench is of the considered view that the decision of the jurisdictional high court on the fact is binding on this tribunal. We are of the view that the considering the peculiar fact of the case that the assessee participated in the assessment proceeding, has paid the tax, and filed the computation of income before issue of notice u/s. 148 of the Act. Based on these set of facts we are of the considered view that levy of penalty of Rs. 2,40,795/- is not sustainable and therefore the same is quashed.’’

15 ITA NO. 142/JP/2024 SMT. SIYA DULARI SOPRA, VS ITO, WARD 6(3), JAIPUR Hence taking into consideration the above facts, circumstances of the case and the case laws cited hereinabove, we do not concur with the findings of the ldCIT(A) and the penalty confirmed is deleted.

3.0 In the result, the appeal of the assesee is allowed. Order pronounced in the open court on 22 /04/2024. Sd/- ¼lanhi xkslkbZ½ (Sandeep Gosain) U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 22 /04/2024 *Mishra आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Smt. Siya Dulari Sopra, Jaipur 2. izR;FkhZ@ The Respondent- The ITO, Ward 6(3),Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 142/JP/2024) vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेजज. त्महपेजतंत