2026 (4) TMI 739

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....al gains enured on her by selling her shares to a foreign Company. 2.The facts of the case is that the assessee, along with her mother-in-law Saritha Jain, father in law M.K.Jain, husband Anurag Jain and her brother in law Vardhaman Jain were shareholders in M/s.Vision Health Service (P) Limited. They all sold their shares to M/s.Perot Systems Investment BV, USA under an agreement dated 15.04.2003. As per the agreement, part consideration paid in lump-sum and the balance payable in three annual instalments. On receipt of Rs.4,23,91,959/- as part consideration for the sale of her shares in the Company, the appellant paid advance tax at the rate of 20% on the capital gains. However, while filing her income tax returns, she claimed exemptio....

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....7 2006-2007 Offered as income from capital gain 4. Contingent Payment-III 3,17,93,411.28 2006-2007 Offered as income from capital gain 5. Having paid advance tax at 20% for the amount received as part payment, the assessee claimed exemption and filed her returns for the respective assessment year. She has claimed that while the contingent payment received was not taxed for the Assessment Year 2006-2007, the Assessing Officer has taxed the amount as profit in lieu of salary under Section 17(3)(ii) and taxed at the rate of 30%. 6. The assessee argued that, when there is no concealment of income and only the head of income is in dispute. Penalty need not be levied, since it is only due to difference of opinion about the ga....

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....er a bonafide belief and had not intended to or attempted to either conceal its income or furnish inaccurate particulars ? And (iii) Whether on the facts and circumstances of the case, the Tribunal was right in law in confirming penalty ignoring that the dispute was with regard to only the head of income since the memo of adjustment has a specific reference to the capital gains earned and also has a specific mention regarding the exemption claimed under Section 10(38) of the Act?" 10. On perusal of the impugned order and the submissions made by the Learned Counsel on both sides, we find that there is no dispute regarding the transfer of shares held by the assessee to a Foreign Company for a particular sale consideration and rece....

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....of the said Anurag Jain who had an employment agreement with the Company. Such employment agreement with this is absent in case of the present assessee. 12. The Tribunal, having considered the facts of the case in hand and the case of Anurag Jain had distinguished it, to arrive at the conclusion that the assessee was not entitled for exemption and the gains received on sale of shares should be treated as capital gains. When there is no legal basis for the claim of exemption, the said omission to pay tax cannot be taken as a plausible view to take cover under bonafide belief. 13. The judgment cited by the Learned Counsel for the appellant, on the general principle of Law regarding uniformity and consistency in judicial pronouncement, h....