Itxa/1116/2011 Of The Commissioner Of Income Tax -V v. Shri Dilip Panraj Sonigara

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1116 OF 2011 The Commissioner of Income Tax-V, Pune ..Appellant. V/s. Shri Dilip Panraj Sonigara ..Respondent. Mr.Vimal Gupta, Senior Advocate with Ms. Padma Divakar for the appellant. None for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATED : 21ST MARCH, 2013 P.C. :- 1.Although several questions have been raised by the revenue in the memo of appeal, counsel for the revenue preses only question III which reads as under:- “ Whether on the facts and in the circumstancesof the case, the Tribunal in deleting the penalty of Rs.12,95,747/- u/s. 271(1)(c) of the I.T. Act, 1961 by ignoring the consistent stand of various High Courts wherein they have held that the guilt of non disclosure is not washed off by the admission or confession through filing of revised return and the applicability of Section 271(1)(c) is not ruled out in such cases ? ” 2.The respondent-assessee had filed its return of income on 22[nd] September, 2003 inter alia declaring long term capital gains on sale of shares to one Database Finance Ltd. Thereafter, the respondent-assessee on 12[th] June, 2006 filed a revised return of income and the claim for long term capital gains on sale of shares to one Database Finance Ltd. was withdrawn and tax was paid at the maximum marginal rate. Thereafter, on 17[th] July, 2006 the Assessing Officer received a communication from the investigation wing of the Income Tax Department to the effect that the respondent-assessee had booked non genuine capital gain for the relevant assessment year. Consequently, the reopening notice under Section 148 of the Income Tax Act, 1961 (the Act) was issued to the respondent assessee on 28[th ]February, 2007. These assessment under Section 147 of the Act was completed on 30[th] November, 2007 in accordance with the revised return filed. However, the Assessing Officer initiated penalty proceedings under Section 271(1)(c) of the Act and levied penalty on the ground that the revised return was filed only consequent to an inquiry by the deparment and thus penalty was leviable. 3.In appeal, the CIT(A) deleted the penalty. On further appeal by the revenue, the Tribunal while upholding the order of the CIT(A) recorded a finding that the revised return of income was filed on 12[th] June, 2006 prior to the information being received by the Assessing Officer on 17[th] July, 2006 of non genuiness of the capital gains claimed by the respondent-assessee. In this view of the matter, the Tribunal upheld the finding of fact of CIT(A) that there was no concealment of any income or furnishing of inaccurate particulars as the revised return of income was filed on 12[th] June, 2006. This revised return was filed much prior to the information received by the Assessing Officer from investigation wing of the Income Tax Department. This revised return of income was accepted and the same was filed much prior to the Assessing Officer confronting the respondent-assessee with the non genuiness of the capital gain claimed. On the aforesaid finding of fact, the delation of penalty by CIT(A) was upheld. 4.In view of the fact that the impugned order deleting the penalty is based on finding of fact, we see no reason to entertain the proposed question of law. Accordingly, the appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)