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Income Tax Appellate Tribunal, DELHI BENCH ‘E’, NEW DELHI
ORDER PER C.M.Garg, J.M. This appeal by the Revenue has been directed against te order of the CIT(A)- XXIII, New Delhi dated 24.10.2013 passed in first appeal no. 09/2012-13 for AY 2002-03 by which penalty imposed, by the AO vide order dated 23.3.2012, u/s 271(1)(c) of the Income Tax Act, 1961 (For short the Act) has been deleted allowing the appeal of the assessee. The grounds raised by the Revenue read as under :
2 National Cooperative Consumers Federation of India “1. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on the facts in deleting the entire penalty of Rs. 13,76,050/-, when in the quantum appeal, the Hon’ble High Court has adjudicated final figure of long term capital gain at Rs. 1,01,21,429/- as agiasnt Rs. 51,27,967/-, claimed by the assessee in its return of income.
2. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on the facts in deleting the entire penalty of Rs. 13,76,050/-, when assessee has filed inaccurate particulars of long term capital gain and concealed particulars of income to the tune of Rs. 49,84,460/-.”
We have heard arguments of both the parties and carefully perused the relevant materials place on the record of the Tribunal. The Ld. Departmental Representative (DR) supporting the penalty order contended that after insertion of explanation 1 to section 271(1)(c) of the Act, the onus is on the assessee to show that there was no intention of concealment on furnishing of inaccurate particulars of the income. Placing reliance on the decision of Hon’ble High Court of Delhi in the case of CIT vs. Gurbachanlal 250 DTR 157 (Del.) the ld. DR vehemently contended that the facts fully justify the levy of penalty as it was clearly established by the AO that the assessee has tried to suppress its taxable income, which was not allowable as per provisions of the Act, thus it was amply clear that the assessee has furnished inaccurate particulars of its income and the penalty u/s 271(1)(c) of the Act was correctly tried on the assessee. The ld. DR pointed out that the CIT(A) granted relief to the assessee without any valid and justified reason
3 National Cooperative Consumers Federation of India therefore, impugned order may be set aside by restoring that of the AO.
The ld. AR drawn our attention to relevant operative para 4.3 of the impugned order and contended two impugned order and contended that in the instant case the assessee not only disclosed all the correct particulars of its income in the return filed but also capital gains has been calculated by the AO on the basis of information submitted by the assessee. Placing reliance of the order of ITAT Delhi in the case of Millenium International vs. ACIT since reported as (2013) 38 Taxman.com 16 (Delhi-Tribunal) the Ld. AR submitted that where the revenue authorities make additions/disallowance on the basis of different set of evidence by taking a different view in respect of claim of the assessee and there are existence of two possible views then penalty u/s 271(1)(c) of the act can’t be imposed as there is no occasion for the assessee either to conceal particulars of income. The AR lastly pointed out that the Revenue authorities took a different view on the same material and evidence which was submitted during assessment proceedings then merely because the AO and CIT(A) made addition by taking a different view, no allegation of furnishing of inaccurate particulars or concealment of particulars of income can be labeled against assessee.
From the careful considerations of above noted rival submissions at the outset, from the vigilant reading of penalty order
4 National Cooperative Consumers Federation of India as well of the first appellate impugned order, we note that the CIT(A) granted relief to the assessee by concluding as follows :
4.3 I have carefully perused the penalty order passed by the AO, as well as the submissions made by the ld. AR. I have also carefully considered the case laws relied upon by the ld. AR in support of his client. In the case of Millenium International (supra), the Hon’ble ITAT in its order dated 08.08.2013 has held that “where Revenue authorities relying upon different set of evidences, took a different view in respect of assessee’s claim of payment of certain expenses, having regard to existence of two possible views, penalty u/s 271(1)(c) could nto be imposed in respect of disallowance of aforesaid claim of assessee.
In the instant case also, not only has the appellant disclosed all the correct particulars of its income in its return, but it is also seen that in its case, capital gains has been calculated by the AO, the ld. CIT(A) and the Hon’ble ITAT according to different methods, which were at variance with each other. Under these circumstances, I am of the considered opinion that penalty u/s 271(1)(c) cannot be imposed as neither has the appellant concealed any facts, nor has it filed any inaccurate particulars of its income. The penalty imposed amounting to Rs. 13,76,050/- is hereby deleted.”
It was noted by the CIT(A) that the assessee furnished all the correct particulars of its income in the return and the AO also calculated capital gains on the basis of said information furnished by the assessee hence allegation of concealment cannot be held as sustainable against the assessee.
However, the AO, in the penalty order at page 5 noted that the assessee has furnished inaccurate particulars of its income as per
5 National Cooperative Consumers Federation of India findings of the CIT(A) in the quantum appeal against the assessment order passed u/s 143(3) read with section 147 of the Act ( copy of page 21 to 25 of paper book). But from the vigilant reading of this order, it is clear that the CIT(A) has not concur with any such allegation as wrongly mentioned and noted by the AO in the penalty order and the appeal of the assessee has been allowed. It was the Tribunal which restored the issue to the file of the AO, directing to determine the actual sale consideration as well as actual cost of acquisition. In the order passed u/s 143(3) / 254 of the act the AO made addition on A/c of long term Capital gain by taking a different view.
In this situation, when on the same information the AO’s view was overruled by CIT(A) and again the first appellate order was demolished by the ITAT and the issue was restored to the file of which again made addition on the basis of some calculation by taking a different view then it is vivid that the Revenue Authorities to different view on different occasions on the basis of information, evidence and facts submitted by the assessee by considering a set of evidence and by taking a new view point then the allegation of furnishing of inaccurate particulars of income cannot be tagged to the assessee. Thus, penalty imposed by the AO was not sustainable and the same was correctly deleted by the CIT(A). We are unable to see any valid reason to interfere without impugned Order of CIT(A) and hence, we uphold the same.
6 National Cooperative Consumers Federation of India
Accordingly, both the ground of the Revenue being breft of merits are dismissed. Consequently, appeal of the Revenue is dismissed.
In the result, appeal of the revenue is dismissed. Order Pronounced in the Court on 31/03/2016.