R.R. HOSIERY, MUMBAI V. ASST CIT 18(2),

ITA 2481/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9092 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 29-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Keywords: Unexplained cash credit; Capital asset; Question of law; Wrong claim; Revised return; Bonafide mistake
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI P.M.JAGTAP, ACCOUNTANT MEMBER I.T.A. NO.2481/MUM/2011. ASSESSMENT YEAR : 2005-06 M/S R.R. HOSIERY, ASSTT. COMMISSIONER OF SHRI LAXMI WOOLEN MILLS VS. INCOME TAX 18(2), ESTATE, OFF DR. E. MOSES ROAD, MUMBAI. MAHALAXMI, MUMBAI -400011. PAN AAAFR 1054R APPELLANT. RESPONDENT . APPELLANT BY : SHRI VIJ AY MEHTA. RESPOND ENT BY : SHRI A.B. KOLI. DATE OF HEARING : 08-11-2012 DATE OF PRONOUNCEMENT : 14 -12-2012. O R D E R PER P.M. JAGTAP, A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED CIT(APPEALS)-29, MUMBAI DATED 18-01-2011 WHEREBY HE SUSTAINED THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) TO THE EXTENT IT WA S IN RESPECT OF ADDITION OF RS.66,59,023/- MADE ON ACCOUNT OF LONG TERM CAPITAL GAINS. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM WHICH IS ENGAGED IN THE BUSINESS OF TRADING IN EQUITY SHARES AS WELL AS CAR RYING ON INVESTMENT AND WARE HOUSING ACTIVITIES. THE RETURN OF INCOME FOR THE YE AR UNDER CONSIDERATION WAS FILED BY IT ON 27-10-2005 DECLARING TOTAL INCOME OF RS.78 ,46,575/-. IN THE SAID RETURN, 2 ITA NO.2481/MUM/2011 EXEMPTION U/S 10(38) OF THE ACT WAS CLAIMED BY THE ASSESSEE IN RESPECT OF LONG TERM CAPITAL GAIN OF RS.77,18,627/- ARISING FROM SA LE OF SHARES OF M/S MATRIX LAB LTD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE AO NOTICED THAT THE SAID LONG TERM CAPITAL GAIN TO THE EXTENT OF RS.75,20,35 1/- HAD ARISEN FROM SHARES SOLD BY THE ASSESSEE ON 07-09-2004. HE ALSO NOTED THAT A S PER THE PROVISIONS OF SECTION 10(38), THE PROFIT ARISING FROM THE SHARE TRANSACTI ONS MADE ONLY AFTER 1 ST OCT., 2004 WAS ELIGIBLE FOR EXEMPTION FROM TAX IF SECURITIES T RANSACTION TAX (STT) WAS PAID THEREON. SINCE THE LONG TERM CAPITAL GAIN TO THE EX TENT OF RS.75,20,351/- HAD ARISEN TO THE ASSESSEE FROM SALE OF SHARES MADE ON 07-09-2 004 AND NO STT WAS ALSO PAID ON THE SAID TRANSACTION, THE AO HELD THAT THE ASSES SEE WAS NOT ENTITLED TO CLAIM EXEMPTION U/S 10(38). ACCORDINGLY, LONG TERM CAPITA L GAIN OF RS.75,20,351/- WAS BROUGHT TO TAX BY THE AO IN THE HANDS OF THE ASSESS EE IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 26-12-2007. HE ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) IN RESPECT OF THE SAID ADDITION MADE ON LONG TERM CAPITAL GAIN AS WELL AS IN RESPECT OF OTHER ADDITION OF RS.50 LAKHS MADE ON ACCOUNT OF UNSECURED LOAN U/S 68 TREATING THE SAME AS UNEXPLAINED CASH CREDIT . MEANWHILE, BOTH THESE ADDITIONS WERE CONFIRMED BY THE LEARNED CIT(APPEAL S) VIDE HIS APPELLATE ORDER DATED 07-08-2008 WHILE DISPOSING OF THE APPEAL FILE D BY THE ASSESSEE IN THE QUANTUM PROCEEDINGS. A FRESH NOTICE THEREAFTER WAS ISSUED BY THE AO REQUIRING THE ASSESSEE TO SHOW CAUSE WHY PENALTY U/S 271(1)(C) SH OULD NOT BE IMPOSED IN RESPECT OF THE SAID TWO ADDITIONS. ALTHOUGH THE ASSESSEE OF FERED ITS EXPLANATION IN RESPECT OF ADDITION MADE U/S 68, NO EXPLANATION WHATSOEVER WAS OFFERED BY THE ASSESSEE DURING THE COURSE OF PENALTY PROCEEDINGS IN RESPECT OF ADDITION MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE AO, HOWEVER, DID NOT FI ND EVEN THE EXPLANATION OFFERED BY THE ASSESSEE IN RESPECT OF ADDITION MADE U/S 68 TO BE ACCEPTABLE AND IMPOSED A PENALTY OF RS.25,25,826/- U/S 271(1)(C) BEING 100% OF THE TAX SOUGHT TO BE EVADED BY THE ASSESSEE IN RESPECT OF BOTH THE ADDITIONS. 3 ITA NO.2481/MUM/2011 3. THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) WAS CHALLENGED BY THE ASSESSEE IN AN APPEAL FILED BEFORE THE LEARNED CIT( APPEALS). THE ASSESSEE HAD ALSO FILED AN APPEAL BEFORE THE TRIBUNAL DISPUTING THE A DDITION MADE U/S 68 TO ITS TOTAL INCOME ON MERIT IN THE QUANTUM PROCEEDINGS. THE SAI D APPEAL WAS DISPOSED OF BY THE TRIBUNAL VIDE ITS ORDER DATED 15-09-2010 DELETI NG THE ADDITION MADE U/S 68 AND TAKING NOTE OF THE SAME, THE LEARNED CIT(APPEALS) C ANCELLED THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) IN RESPECT OF THE SAID ADDI TION. THE ADDITION MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN, HOWEVER, WAS NO T AGITATED BY THE ASSESSEE BEFORE THE TRIBUNAL. IN RESPECT OF THE SAID ADDITIO N, IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS) THAT E XEMPTION U/S 10(38) WAS INADVERTENTLY CLAIMED BY IT IN RESPECT OF ENTIRE LO NG TERM CAPITAL GAIN OF RS.77,18,627/- IN THE YEAR UNDER CONSIDERATION WHIC H WAS THE FIRST YEAR IN WHICH THE SAID PROVISION WAS INTRODUCED. IT WAS SUBMITTED THAT THE ASSESSEE, HOWEVER, WAS ELIGIBLE FOR THE SAID EXEMPTION IN RESPECT OF CAPIT AL GAIN ONLY TO THE EXTENT OF RS.10,49,477/- ON WHICH STT WAS PAID AND THERE WAS A BONAFIDE MISTAKE IN CLAIMING EXEMPTION IN RESPECT OF THE BALANCE AMOUNT OF CAPITAL GAIN OF RS.66,59,023/- FOR WHICH PENALTY U/S 271(1)(C) SHOU LD NOT BE IMPOSED. THE LEARNED CIT(APPEALS), HOWEVER, DID NOT FIND MERIT IN THE CO NTENTION OF THE ASSESSEE AND SUSTAINED THE PENALTY IMPOSED BY THE AO U/S 271(1)( C) TO THE EXTENT IT WAS IN RESPECT OF ADDITION OF RS.66,59,023/- MADE ON ACCOU NT OF CAPITAL GAIN FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 2.5 AND 2. 6 OF HIS IMPUGNED ORDER : 2.5 I HAVE CONSIDERED THE FACTS OF THE CASE, ARGUM ENTS OF THE ASSESSISNG OFFICER AND THE WRITTEN SUBMISSIONS OF THE AUTHORIS ED REPRESENTATIVE OF THE APPELLANT. AS PER EXPLANATION 1 TO SECTION 271(1)(C ) IF AN ADDITION IS MADE TO THE TOTAL INCOME OF A PERSON BECAUSE OF THE FACT TH AT SUCH PERSON FAILED TO OFFER AN EXPLANATION WITH REGARD TO ANY FACTS MATER IAL TO THE COMPUTATION OF HIS TOTAL INCOME OR OFFERED AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER TO BE FALSE THEN THE AMOUNT SO ADDED SHALL BE DEEMED TO BE THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CO NCEALED. THIS WILL ALSO 4 ITA NO.2481/MUM/2011 BE APPLICABLE IF SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATI ON IS BONAFIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM. IT MEANS THAT TH E APPELLANT IS UNDER OBLIGATION TO OFFER BONAFIDE EXPLANATION. IN A LAND MARK DECISION HONBLE SUPREME COURT IN THE CASE OF UNION OF INDIA VS. DHA RMENDRA TEXTILE PROCESSORS (2007) 166 TAXMAN 65 (SC) HAS EVEN HELD THAT WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT OF PENAL TY. IF THE EXPLANATION OFFERED BY THE APPELLANT IS NOT BONAFIDE, CONVINCIN G OR ACCEPTABLE IT WILL AMOUNT TO FURNISHING OF INACCURATE PARTICULARS OF I NCOME. IN THE CASE OF VIDYA GOWRI NATVERLAL 238 ITR 91 (GUJ), THE HONBLE GUJRAT HIGH COURT HELD THAT MERE DISCLOSURE DOES NOT SAVE THE APPELLA NT. IF WHAT IS NOT ALLOWABLE IS CLAIMED AS AN EXPENDITURE THIS WILL AM OUNT TO FURNISHING OF INACCURATE PARTICULARS OF INCOME. HONBLE GUJRAT HI GH COURT IN THE CASE OF SOMNATH MILLS 214 ITR 32 HAS ALSO HELD THAT FINDING S IN THE ASSESSMENT PROCEEDINGS CONSTITUTE GOOD EVIDENCE OF CONCEALMENT . 2.6 I FIND THAT APPELLANT FILED INACCURATE PARTICUL ARS OF INCOME TO THE TUNE OF RS.66,59,023/-. IT WAS ONLY AFTER EXAMINATION BY THE ASSESSING OFFICER THAT SUCH A WRONGFUL CLAIM HAS BEEN FOUND OUT. BUT FOR THE ACTION OF THE ASSESSING OFFICER THIS AMOUNT COULD HAVE ESCAPED TA XATION. THE CLAIM THAT THE MISTAKE WAS BONAFIDE CANNOT BE ALSO ACCEPTED. A DMITTEDLY INACCURATE PARTICULARS OF INCOME TO THIS EXTENT HAS BEEN FILED BY THE APPELLANT AND THE ASSESSING OFFICER WAS DUTY BOUND TO IMPOSE PENALTY. THE PENALTY LEVIED BY THE ASSESSING OFFICER IS CONFIRMED IN RESPECT OF TH IS AMOUNT. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUT SET, INVITED OUR ATTENTION TO THE COMPUTATION OF TOTAL INCOME OF THE ASSESSEE PLA CED AT PAGE NO. 3 OF THE PAPER BOOK TO SHOW SEVERAL MISTAKES MADE BY THE ASSESSEE IN THE WORKING OF LONG TERM CAPITAL GAIN GIVEN THEREIN. HE SUBMITTED THAT EXEMP TION IN RESPECT OF LONG GERM CAPITAL GAIN WAS CLAIMED IN THE SAID COMPUTATION U/ S 54D WHICH IS NOT APPLICABLE. HE SUBMITTED THAT LONG TERM CAPITAL GAIN FOR THE PE RIOD 1 ST OCTOBER, 2004 TO 31 ST MARCH, 2005 WAS SHOWN WRONGLY AT RS.1,98,276/- AS A GAINST THE CORRECT FIGURE OF 5 ITA NO.2481/MUM/2011 RS.10,49,477/- AND SIMILARLY LONG TERM CAPITAL GAI N FOR THE PERIOD 1 ST APRIL, 2004 TO 30 TH SEPT., 2004 WAS WRONGLY SHOWN AT RS.75,20,351/- AS AGAINST THE CORRECT FIGURE OF RS.66,59,023/-. HE SUBMITTED THAT ALL THE SE OTHER MISTAKES COMMITTED BY THE ASSESSEE IN THE COMPUTATION OF TOTAL INCOME ARE SUFFICIENT TO SHOW THAT THE MISTAKE COMMITTED BY IT IN CLAIMING EXEMPTION U/S 1 0(38) IN RESPECT OF LONG TERM CAPITAL GAIN FOR THE PERIOD 01-04-2004 TO 30-09-200 4 WAS A BONAFIDE AND GENUINE MISTAKE. HE CONTENDED THAT OTHER RELEVANT DETAILS R EGARDING THE COMPUTATION OF LONG TERM CAPITAL GAIN, HOWEVER, WERE FULLY AND TRU LY GIVEN BY THE ASSESSEE AND IT IS THUS NOT A FIT CASE TO IMPOSE PENALTY U/S 271(1)(C) . HE ALSO CONTENDED THAT THE SERIES OF MISTAKE COMMITTED BY THE ASSESSEE IN THE COMPUTATION OF LONG TERM CAPITAL GAINS SHOWS THE BONAFIDES OF THE ASSESSEE WHICH IS FURTHER SUPPORTED BY THE FACT THAT THE SAID MISTAKES WERE ACCEPTED BY THE ASSESSE E IN THE LETTER DATED 11 TH NOVEMBER, 2007 FILED BEFORE THE AO. HE CONTENDED TH AT THE CLAIM FOR EXEMPTION U/S 10(38) IN RESPECT OF LONG TERM CAPITAL GAIN THU S WAS INADVERTENTLY MADE BY THE ASSESSEE AS A RESULT OF GENUINE AND BONAFIDE MISTAK E AND THE DISALLOWANCE OF SUCH CLAIM CANNOT BE TREATED AS CONCEALMENT TO IMPOSE PE NALTY U/S 271(1)(C). IN SUPPORT OF THIS CONTENTION, HE RELIED ON THE DECISION OF HO NBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SIDHARTHA ENTERPRISES 322 ITR 80, THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF PRICEWATERHOUS ECOOPERS (P) LTD. VS. CIT 253 CTR 1 AND THE DECISION OF COORDINATE BENCH OF T HIS TRIBUNAL DATED 28 TH SEPT., 2012 PASSED IN THE CASE OF ASIA ATTRACTIVE DIVIDEND STOCK FUND IN ITA NO. 3908/MUM/2012. 5. THE LEARNED DR, ON THE OTHER HAND, STRONGLY RELI ED ON THE ORDERS OF THE AUTHORITIES BELOW IN SUPPORT OF THE REVENUES CASE THAT IT IS A FIT CASE TO IMPOSE PENALTY U/S 271(1)(C). HE SUBMITTED THAT PATENTLY W RONG CLAIM WAS MADE BY THE ASSESSEE IN THE RETURN OF INCOME FOR EXEMPTION U/S 10(38) WHICH WAS DETECTED BY 6 ITA NO.2481/MUM/2011 THE AO. HE SUBMITTED THAT THE ASSESSEE, HOWEVER, DI D NOT RECTIFY THE SAID MISTAKE BY FILING THE REVISED RETURN AND NO BASIS WHATSOEVE R WAS GIVEN TO JUSTIFY THE SAID CLAIM MADE WRONGLY BY THE ASSESSEE. HE CONTENDED TH AT THERE IS NOTHING TO SUPPORT AND SUBSTANTIATE THE CONTENTION OF THE LEARNED COUN SEL FOR THE ASSESSEE THAT THE SAID CLAIM WAS WRONGLY MADE AS A RESULT OF GENUINE AND B ONAFIDE MISTAKE AND IN THE ABSENCE OF THE SAME, PENALTY IMPOSED U/S 271(1)(C) DESERVES TO BE CONFIRMED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT LONG TERM C APITAL GAIN FOR THE PERIOD APRIL, 2004 TO SEPTEMBER, 2004 WAS CLAIMED TO BE EXEMPT BY THE ASSESSEE U/S 10(38) WHICH CLEARLY PROVIDES THAT ANY INCOME ARISING FROM THE TRANSFER OF LONG TERM CAPITAL ASSET, BEING EQUITY SHARE IN A COMPANY, IS EXEMPT FROM TAX WHERE THE TRANSACTION OF SALE OF SUCH EQUITY SHARE IS ENTERED INTO ON OR AFTER 1 ST OCTOBER, 2004 AND SUCH TRANSACTION IS CHARGEABLE TO SECURITIES TR ANSACTION TAX. IN THE PRESENT CASE, THE TRANSACTIONS OF SALE OF SHARES GIVING RIS E TO LONG TERM CAPITAL GAIN WERE ENTERED INTO PRIOR TO 1 ST APRIL, 2004 AND THE SAME WERE ALSO NOT CHARGEABLE TO SECURITIES TRANSACTION TAX. THE ASSESSEE, THEREFORE , WAS NOT ENTITLED TO CLAIM EXEMPTION U/S 10(38), THE PROVISIONS OF WHICH ARE V ERY PLAIN AND SIMPLE IN THIS REGARD. THE EXEMPTION U/S 10(38) THUS WAS WRONGLY C LAIMED BY THE ASSESSEE WHICH WAS DETECTED BY THE AO DURING THE COURSE OF ASSESSM ENT PROCEEDINGS. 7. THE LEARNED COUNSEL FOR THE ASSESSEE IN SUPPORT OF THE ASSESSEES CASE HAS CONTENDED THAT THE EXEMPTION U/S 10(38) WAS INADVER TENTLY CLAIMED BY THE ASSESSEE AS A RESULT OF GENUINE AND BONAFIDE MISTAKE. NOTHIN G, HOWEVER, HAS BEEN BROUGHT ON RECORD BEFORE US TO SHOW AS TO HOW THE SO CALLED MISTAKE COMMITTED BY THE ASSESSEE IN CLAIMING WRONG EXEMPTION U/S 10(38) WAS A RESULT OF GENUINE AND BONAFIDE MISTAKE. MERELY BECAUSE THERE WERE CERTAIN OTHER MISTAKES COMMITTED BY THE ASSESSEE IN COMPUTING THE LONG TERM CAPITAL GAI N, IT CANNOT BE CONCLUDED THAT 7 ITA NO.2481/MUM/2011 THE WRONG CLAIM OF EXEMPTION MADE BY THE ASSESSEE U /S 10(38) WAS A RESULT OF BONAFIDE AND GENUINE MISTAKE. AS ALREADY NOTED BY U S, THE PROVISIONS OF SECTION 10(38) IN THIS REGARD ARE VERY PLAIN AND SIMPLE AND SINCE NONE OF THE TWO CONDITIONS STIPULATED THEREIN WAS SATISFIED IN THE CASE OF THE ASSESSEE, IT IS DIFFICULT TO ACCEPT THE CONTENTION RAISED ON BEHALF OF THE AS SESSEE THAT EXEMPTION UNDER THE SAID PROVISION WAS WRONGLY CLAIMED AS A RESULT OF G ENUINE AND BONAFIDE MISTAKE. IT IS ALSO OBSERVED THAT THE ENTIRE LONG TERM CAPITAL GAIN EARNED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION WAS CLAIMED TO BE EXEM PT U/S 54D IN THE RETURN OF INCOME AND EVEN THE PARTICULARS RELATING TO PAYMEN T OF SECURITIES TRANSACTION TAX, WHICH WERE RELEVANT TO THE ASSESSEES CLAIM FOR EXE MPTION U/S 10(38), HAD NOT BEEN FURNISHED BY THE ASSESSEE. 8. IN SUPPORT OF THE ASSESSEES CASE, THE LEARNED C OUNSEL FOR THE ASSESSEE HAS RELIED ON CERTAIN JUDICIAL PRONOUNCEMENTS. A PERUSA L OF THE DECISIONS CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE, HOWEVER, SHOWS TH AT THE SAME ARE DISTINGUISHABLE ON FACTS. IN THE CASE OF SIDHARTHA ENTERPRISES 322 ITR 80 (P&H) CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE HAD SUFFERED A LOSS ON SALE OF MACHINERY WHICH WAS DULY DISCLOSED IN THE STATEMENT OF ACCOUNTS FILED ALONG WITH THE RETURN. THERE WAS NO ALLEGATION ABOUT THE INCOR RECTNESS OF THE SAID LOSS AND THE ONLY MISTAKE COMMITTED BY THE LEARNED COUNSEL FOR T HE ASSESSEE WAS THAT THE SAME WAS ADJUSTED AGAINST THE PROFITS OF THE BUSINESS. W HEN THE AO POINTED OUT THAT THE LOSS SUFFERED ON SALE OF MACHINERY WAS NOT ALLOWABL E TO BE SET OFF AGAINST THE PROFITS OF BUSINESS, THE ASSESSEE ON REALIZING THE MISTAKE COMMITTED BY HIS COUNSEL, ACCEPTED THE DECISION OF THE AO IN DISALLOWING THE LOSS. IN THESE FACTS AND CIRCUMSTANCES OF THE CASE, THE TRIBUNAL HELD THAT T HE MISTAKE HAVING BEEN COMMITTED BY THE COUNSEL OF THE ASSESSEE AND ENTIRE FACTS HAVING BEEN ALREADY DISCLOSED BY THE ASSESSEE IN THE DOCUMENTS FILED AL ONG WITH THE RETURN, THERE WAS NO 8 ITA NO.2481/MUM/2011 CASE OF CONCEALMENT OF PARTICULARS OF HIS INCOME BY THE ASSESSEE OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. THIS DECISIO N OF THE TRIBUNAL WAS UPHELD BY THE HONBLE PUNJAB & HARYANA HIGH COURT HOLDING THA T THE VIEW TAKEN BY THE TRIBUNAL COULD NOT BE HELD TO BE PERVERSE AND THE A PPEAL FILED BY THE REVENUE WAS DISMISSED HOLDING THAT THE SUBSTANTIAL QUESTION OF LAW PROPOSED IN THE SAID APPEAL DID NOT ARISE FOR CONSIDERATION. IN THE PRESENT CAS E, THE ASSESSEE HAS NOT BEEN ABLE TO SHOW THAT THE MISTAKE IN CLAIMING EXEMPTION U/S 10( 38) WAS A GENUINE AND BONAFIDE MISTAKE. MOREOVER, AS ALREADY NOTED BY US, THE RELEVANT FACT REGARDING PAYMENT OF STT WAS ALSO NOT DISCLOSED BY THE ASSESS EE. ON THE CONTRARY, THE EXEMPTION IN RESPECT OF ENTIRE LONG TERM CAPITAL GA IN WAS CLAIMED BY THE ASSESSEE U/S 54D IN THE COMPUTATION OF TOTAL INCOME FILED A LONG WITH THE RETURN OF INCOME. 9. IN THE CASE OF ASIA ATTRACTIVE DIVIDEND STOCK F UND (SUPRA) DECIDED BY THE TRIBUNAL AND CITED BY THE LEARNED COUNSEL FOR THE A SSESSEE, THE ASSESSEE HAD WORKED OUT TAX PAYABLE ON SHORT TERM CAPITAL GAIN AT THE R ATE OF 10% AS PER SECTION 111A OF THE ACT INSTEAD OF 30% AND WHEN HE RECEIVED A NOTIC E U/S 142(1), WHILE PREPARING REPLY TO THE SAID NOTICE, HE NOTICED THE SAID MISTA KE. HE, THEREFORE, FILED A LETTER BEFORE THE AO SUO MOTU BRINGING THE SAID MISTAKE TO THE NOTICE OF THE AO. ALONG WITH THE SAID LETTER, REVISED COMPUTATION OF INCOME AND TAX PAYABLE THEREON WAS ALSO FILED BY THE ASSESSEE AND KEEPING IN VIEW THES E FACTS OF THE CASE AS WELL AS THE FACT THAT THE ASSESSEE HAD FURNISHED ALL THE RELEVA NT PARTICULARS FULLY AND TRULY IN THE RETURN OF INCOME, PENALTY IMPOSED U/S 271(1)(C) WAS HELD TO BE UNSUSTAINABLE BY THE TRIBUNAL. IN THE PRESENT CASE, THE ASSESSEE HAD INITIALLY CLAIMED EXEMPTION IN RESPECT OF ENTIRE LONG TERM CAPITAL GAIN U/S 54D OF THE ACT AND IN THE LETTER DATED 11 TH NOVEMBER, 2007 FILED AT THE FAG END OF THE ASSESSM ENT PROCEEDINGS, THE ASSESSEE STATED THAT THE SAID EXEMPTION WAS WRONGLY CLAIMED U/S 54D INSTEAD OF U/S 10(38) DUE TO CLERICAL MISTAKE. THE AO, HOWEVER, FO UND THAT EVEN THE CLAIM MADE 9 ITA NO.2481/MUM/2011 BY THE ASSESSEE FOR EXEMPTION U/S 10(38) WAS WRONG AND WHEN HE DISALLOWED THE SAME, THE ASSESSEE CHALLENGED THE SAID DISALLOWANCE UNSUCCESSFULLY IN THE APPEAL FILED BEFORE THE LEARNED CIT(APPEALS). THE FACTS IN VOLVED IN THE CASE OF THE ASSESSEE THUS ARE ENTIRELY DIFFERENT FROM THE FACTS INVOLVED IN THE CASE OF ASIA ATTRACTIVE DIVIDEND STOCK FUND (SUPRA) RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE. 10. SIMILARLY THE FACTS INVOLVED IN THE CASE OF PRI CEWATERHOUSECOOPERS (P) LTD. (SUPRA) CITED BY THE LEARNED COUNSEL FOR THE ASSESS EE ARE FOUND TO BE DIFFERENT FROM THE FACTS OF THE ASSESSEES CASE INASMUCH AS THE BA SIS ON WHICH THE COMPUTATION ERROR MADE IN ITS RETURN OF INCOME WAS EXPLAINED BY THE ASSESSEE BY WAY OF AN AFFIDAVIT AND ON THE BASIS OF ASSERTIONS MADE IN TH E SAID AFFIDAVIT, THE COMPUTATION ERROR MADE BY THE ASSESSEE WAS FOUND TO BE BONAFIDE . MOREOVER, IN THE TAX AUDIT REPORT FILED ALONG WITH THE RETURN OF INCOME, IT WA S UNEQUIVOCALLY STATED THAT THE RELEVANT PROVISION MADE FOR PAYMENT OF GRATUITY WAS NOT ALLOWABLE U/S 40A(8) OF THE ACT AND ON THE BASIS OF THESE CONTENTS OF THE T AX AUDIT REPORT, THE HONBLE SUPREME COURT HELD THAT THERE WAS NO QUESTION OF TH E ASSESSEE CONCEALING THE PARTICULARS OF SUCH INCOME ATTRACTING LEVY OF PENAL TY U/S 271(1)(C). WE, THEREFORE, FIND THAT NONE OF THE CASE LAWS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE IN SUPPORT OF THE ASSESSEES CASE IS APPLICABLE BEI NG DISTINGUISHABLE ON FACTS AND THE RELIANCE OF THE ASSESSEE THEREON IS CLEARLY MIS PLACED. 11. AS ALREADY DISCUSSED, THE ASSESSEE HAS NOT BEEN ABLE TO SHOW SATISFACTORILY THAT THE SO CALLED MISTAKE COMMITTED BY HIM WHILE M AKING A WRONG CLAIM FOR EXEMPTION U/S 10(38) IS A BONAFIDE AND GENUINE MIST AKE AND THE ASSESSEE HAVING NOT DISCLOSED FULLY AND TRULY ALL THE MATERIAL FACT S RELEVANT TO THE SAID CLAIM, WE ARE OF THE VIEW THAT IT IS A FIT CASE TO IMPOSE PENALTY U/S 271(1)(C). IN THAT VIEW OF THE 10 ITA NO.2481/MUM/2011 MATTER, WE UPHOLD THE IMPUGNED ORDER OF THE LEARNED CIT(APPEALS) CONFIRMING THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) AND DISMISS THIS APPEAL OF THE ASSESSEE. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED COURT ON THIS 14 TH DAY OF DEC., 2012. SD/- SD/- (B.R. MITTAL) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 14 TH DEC., 2012. WAKODE COPY TO : 1. APPELLANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. D.R., D-BENCH. (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.