Itxa/2479/2011 Of The Commissioner Of Income Tax - 12 v. Pratima Shodhan

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2479 OF 2011 The Commissioner of Income Tax-12, ..Appellant. V/s. Smt. Pratima Shodhan..Respondent. Mr. Suresh Kumar with Padma Divakarfor the appellant. Dr. K. Shivram with Paras Savla i/b. Ajay Singh for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. M.S. SANKLECHA, JJ. DATED : 8TH MARCH, 2013 P.C. :- 1. In this appeal by the revenue for the assessment year 2004-05, following questions of law have been raised for our consideration:- (i)Whether on the facts and in the circumstances of the case, the Tribunal was justified in deleting the penalty imposed Section 271(1)(c) read with Explanation 1 ?Tribunal was justified in deleting the penalty imposed Section 271(1)(c) read with Explanation 1 ? (ii)Whether on the facts and in the circumstances of the case, the Tribunal was justified in ignoring the fact that the assessee did not bring on record accurate documentary evidence in respect of the assets on which capital gains was claimed ?Tribunal was justified in ignoring the fact that the assessee did not bring on record accurate documentary evidence in respect of the assets on which capital gains was claimed ? (iii)Whether on the facts and in the circumstances of the case, the Tribunal was justified in ignoring the fact that but for the investigation by the assessing officer, the inaccurate computation of capital gains would not have been seen the light of the day ?Tribunal was justified in ignoring the fact that but for the investigation by the assessing officer, the inaccurate computation of capital gains would not have been seen the light of the day ? (iv)Whether the Tribunal was correct in interpretetion of Section 271(1)(c) in holding that these provisions are not attracted since there was no addition to the income or additional tax liability ?271(1)(c) in holding that these provisions are not attracted since there was no addition to the income or additional tax liability ? (v)Whether the Tribunal was right in ignoring the law as laid down by the Supreme Court in B.A. Balasubramaniam & Bross Co. V/s. CIT (2001) 116 Taxman 842 (SC) wherein it was held with the incorporation of Explanation 1 to Section 271(1)(c) it was incumbent on the assessee to discharge the onus of not having concealed income where the difference between the income returned and assessed was more than twenty per cent ?by the Supreme Court in B.A. Balasubramaniam & Bross Co. V/s. CIT (2001) 116 Taxman 842 (SC) wherein it was held with the incorporation of Explanation 1 to Section 271(1)(c) it was incumbent on the assessee to discharge the onus of not having concealed income where the difference between the income returned and assessed was more than twenty per cent ? 2.The Assessing Officer while passing the assessment order for AY 2004-05 made addition of Rs.85.65 lakhs on account of long term capital on sale of flat and Rs.3.10 lakhs and Rs.3.06 lakhs on account of long term capital gain from sale of shares. The above additions were essentially made on account of disallowing the indexation claim of the respondent-assessee. Consequent to the above, the Assessing Officer levied a penalty under Section 271(1)(c) of the Income Tax Act, 1961 (the Act). The CIT(A) upheld the penalty on account of the above addition. The Tribunal by the impugned order deleted the penalty. In the present case, neither there is any dispute regarding the cost of acquisition nor regarding the sale price and it is only on account of disallowing indexation, additions were made, but on account of the entire sale proceeds being invested under Sections 54E and 54EC of the Act, there was no tax liability on account of the additions made by the assessing officer. deleted the penalty. In the present case, neither there is any dispute regarding the cost of acquisition nor regarding the sale price and it is only on account of disallowing indexation, additions were made, but on account of the entire sale proceeds being invested under Sections 54E and 54EC of the Act, there was no tax liability on account of the additions made by the assessing officer. 3.Thus, in the present case, additions were made not on account of furnishing inaccurate particulars of income or concealment of income on the part of the respondent-assessee but on account of the claim being disallowed. In these circumstances, we see no reason to entertain the proposed question of law. 4.Accordingly, the appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)