MADHU DAULAT LALWANI,MUMBAI vs. ITO (IT) WD WD 4(1), MUMBAI

Rival contentions have been heard and record perused. According to the facts mentioned in the assessment order, the assessee became owner of flat No.23 at Valencia, Juhu, Mumbai for Rs.45,00,000/- on 9-6- 1997. Subsequently, on 01-06-2000, the assessee sold this flat for Rs.67,50,000/-. While acquiring the flat, the assessee has paid Rs.1,00,000/- on 6-5-1999 and the balance of Rs.44,00,000/- was paid on 9-6-1997. In the return of income filed, the assessee has shown capital gain as under :- “Capital Gains Long Term Sale of flat at Juhu 67,50,000 Less: Indexed cost (45,00,000 x 406/(244)(74,87,705) Less : Stamp Duty paid (F.Y.2000-01) (2,06,700) (76,94,405) Less carried forward (9,44,405)

Ld. AR placed on record order passed in the case of husband of the assessee Shri Daulat Lalwani, wherein under similar facts matter was restored back to the file of AO in quantum appeal, thereafter the Tribunal vide its order dated 5-9-2012 in ITA No.6330/M/2011 deleted the penalty imposed u/s.271(1)(c) with respect to wrong computation of capital gains, after having the following observations :- “9. We have heard the arguments of both the parties and have perused the orders of the revenue authorities on the impugned issue. It is apparent, that there has been a calculation mistake of the LTCG / LTCL, but there had not be any willful miscarriage of of a penal proceedings. In the case at hand, at no stage, there had been an objection by any revenue authority that any primary fact had been concealed or withheld.

Under these circumstances, the decision of Hon'ble Supreme Court in the case of Reliance Petroproducts Pvt. Ltd. (supra) comes to the rescue of the assessee, wherein the Hon'ble Supreme Court has held that even a wrongful claim of an allowance shall not be good enough for the levy of penalty.

Respectfully following the decision of the Hon'ble Supreme Court, we hold that the penalty in such circumstance, could not be levied.

In these circumstance we set aside the order of the CIT(A) sustaining the levy of penalty and cancel the penalty levied by the AO.”

As the facts and circumstances in the case of the assessee, are the same to the facts in the case of her husband Shri Daulat Lalawani, wherein penalty has been levied for the very same ground of wrong computation of indexed cost of acquisition resulting into higher capital gains. After having the observation as indicated above the Tribunal has deleted the penalty. Respectfully following the order of the Tribunal in the case of husband of assessee, having similar facts, we delete the penalty so imposed by the AO.

In the result, appeal of the assessee is allowed. Order pronounced in the open court on this 18/11/2015. (AMARJIT SINGH) (R.C.SHARMA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER भुंफई Mumbai; ददनांक Dated 18/11/2015 प्र.कु.मभ/pkm, नन.स/ PS आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीराथी / The Appellant 1. प्रत्मथी / The Respondent. 2. आमकय आमुक्त(अऩीर) / The CIT(A), Mumbai. 3. आमकय आमुक्त / CIT 4. ववबागीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai 5. गार्ा पाईर / Guard file. 6. आदेशाि सार/ BY ORDER, सत्मावऩत प्रनत ////