TaxTMI 
TaxTMI 
2017 (11) TMI 1056
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....d no objection from the Ld. DR, this appeal of the assessee is dismissed as not pressed. 2. Now, we shall take up the penalty appeal of the assessee in ITA No. 4979/Mum/2014, confirming the penalty of Rs. 16,99,500/-, imposed u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter the Act) and confirmed by the First Appellate Authority. 2.1. The contention of the ld. counsel for the assessee is that there is delay of 47 days for filing the appeal may be condoned. The assessee has filed an application for condonation of delay supported by an affidavit, explaining the reasons of delay. The ld. counsel reiterated the contents of the application/affidavit by pleading that the delay may be condoned. On the other hand, the ld. DR, contended that the assessee is to explain the delay of each day, therefore, the delay may not be condoned. 2.2. We have considered the rival submissions and perused the material available on record. In view of the assertions made by the ld. respective counsel, so far as, condonation of delay is concerned no doubt filing of an appeal is a right granted under the statute to the assessee and is not an automatic privilege, therefore, the assessee is e....
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....ufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the others courts in the hierarchy." 2.4. Furthermore, the Hon'ble Supreme Court in the case of Vedabai Alia Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil 253 ITR 798 held that the court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression 'sufficient cause', the principle of advancing substantial justice is of prime importance. The court held that the expression "sufficient cause" should receive liberal construction. 2.5. The decision of the Tribunal in People Infocom Private Ltd. v/s CIT (ITA No.210/Mum/2013) order dated 19/05/2016, M/s Neutron Services Centre Pvt. Ltd vs ITO (ITA No.1180/Mum/2012) order dated 18/02/2016, Shri Saidatta Coop-. Credit Society Ltd. v/s ITO (ITA No.2379/Mum/20....
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....) of the Act, which was confirmed by the First Appellate Authority. The assessee is in appeal before this Tribunal. 3.2. If the observation made in the assessment order, leading to addition made to the total income, penalty order, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, there is no dispute to the fact that the assessee was in custody during the relevant time and could not furnished the necessary documents as asked by the Ld. Assessing Officer. This is also an admitted fact that disallowance was made on ad-hoc basis and the assessee to buy peace with the Department made the surrender. Now, question arises, whether the penalty u/s 271(1) can be said to be justified. Considering the totality of facts explained before us and since, the assessee was in custody during the relevant period, when the assessee was asked to produce the necessary documents, to substantiate its claim, it may not be possible to furnish the same. The assessee to buy peace with the Department made a surrender and paid the taxes thereupon. In such a situation, the decision in CIT v. SDV Chandru 266....
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....nt being Long Term Capital Gain on sale of shares. However, no income on account of the above was offered for taxation. Thereafter, on 5th October, 2007, during a course of survey, the Respondent-assessee declared additional income of Rs. 5 Crores which included an amount of Rs. 1.62 Crores for Assessment Year 2006-07 which had not been returned as income being long term capital gains in view of exemption claimed under Section 10(38) of the Act. 4. On 29th October, 2007 the Respondent-assessee filed a revised return of income for the Assessment Year 2006-07,wherein an amount of Rs. 1.62 Crores was returned as part of income totally aggregating to Rs. 1.72 Crores. On 25th November, 2008, the Assessing Officer completed the assessment proceedings under Section 143(3) of the Act determining a total income at Rs. 1.74 Crores. The Assessment order also initiated penalty proceeding under Section 271(1)(c) of the Act, for claiming incorrect exemption. 5. By an order dated 27th May, 2009 the Assessing Officer imposed a penalty of Rs. 55.79 lakhs under Section 271(1)(c) of the Act for having concealed particulars of income and furnishing inaccurate particulars thereof. Thi....
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....of business income during survey of proceeding only by to buy peace. In the circumstances, the impugned order upheld the deletion of penalty of the CIT(A). 8. Mr. Malhotra, learned counsel appearing in support of the Appeal submits as under:- (a) The Commissioner of Income Tax(Appeals) has referred to brokers note, copy of balance sheet, copy of Demat Account, bank statement etc to reach a conclusion that prima facie the income appears to be on account of Long Term Capital Gain. This is totally unjustified as no remand report was called for from the Assessing Officer and the Revenue was given no opportunity to contest the same; (b) The justification by the Assessee of having made the disclosure of Rs. 1.62 Crores as business income when originally claimed as capital gain was for the purposes of buying peace is not available as held by the Apex Court in Mak Data P. Ltd v/s Commissioner of Income Tax- II(Civil Appeal No.9772 of 2013 rendered on 30th October, 2013; and (c) That a change of head of income during the assessment proceeding would warrant penalty upon a defaulting assessee if the same has an impact on the tax payable. Thus the decision o....
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....he surrender of income was not voluntary but was made only on the account of detection by the Assessing Officer during the course of survey. Further, the Apex Court also records the fact that the survey was conducted more than 10 months before the assessee filed its return of income. However, the assessee therein had not declared this income in its return of income filed subsequent to the survey which again indicated the fact that he had no intention to declare its true income. In any event, the facts in the present case as found by the CIT(A) and the Tribunal is that the Respondent assessee had disclosed an amount of Rs. 1.62 Crores in the original return by crediting the same to its capital account being Long Term Capital Gain on the sale of share. Thus, the Appellant was under bonafide belief that the income from long term capital gain was exempt from tax. Thus, the decision of the Apex Court would not apply to the facts arising in the present case. 11. The contention on behalf of the Revenue that in case there is a tax impact by virtue of change of head during the assessment proceedings then penalty is imposable and the decision of this Court in M/s. Bennett Coleman(su....