Smt. Gunjan Jain, CHENNAI V. ADIT, CHENNAI

ITA 748/CHNY/2010

• Counselvise Citation: 74821714 RSA 2010
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-09-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 19-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Earning of tax free income; Advance ruling; Wrong claim; Difference of opinion; Change of opinion
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER I.T.A. NO. 748/MDS/2010 (ASSESSMENT YEAR : 2006-07) SMT. GUNJAN JAIN, NO.3, WALLACE GARDEN III STREET, CHENNAI - 600 006. PAN : AADPG 4377 K (APPELLANT) V. THE ASSISTANT DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION)-I(1), CHENNAI - 600 034 . (RESPONDENT) APPELLANT BY : SHRI R. VIJAYARAGHAVAN, ADVOCATE RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 11.09.2013 DATE OF PRONOUNCEMENT : 26.09.2013 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY THE ASSESSEE, ITS GRIEVAN CE IS THAT THE CIT(APPEALS) CONFIRMED PENALTY OF ` 1,40,20,656/- LEVIED ON HER UNDER SECTION 271(1)(C) OF INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 2. FACTS APROPOS ARE THAT ASSESSEE HAD IN THE RETUR N FILED FOR THE IMPUGNED ASSESSMENT YEAR, CLAIMED A SUM OF ` 4,23,91,959/- AS I.T.A. NO. 748/MDS/10 2 EXEMPT INCOME WITH A NARRATION LONG TERM CAPITAL G AIN FROM VISION HEALTH SOURCE PRIVATE LIMITED. ASSESSING OFFICER REQUIRED THE ASSESSEE TO EXPLAIN HOW THE AMOUNT WAS CONSIDERED A S EXEMPT. REPLY OF THE ASSESSEE WAS THAT SHE WAS ONE OF THE S HAREHOLDERS OF M/S VISION HEALTH RESOURCES INDIA PVT. LTD. (VHRPL) . M/S VHRPL HAD ENTERED INTO AN AGREEMENT FOR TRANSFER OF ITS E NTIRE BUSINESS, INCLUDING THE SHARE CAPITAL, TO M/S PEROT SYSTEMS I NVESTMENTS BV, NETHERLANDS AND M/S PEROT SYSTEMS BV NETHERLANDS, F OR A CONSIDERATION OF $ 93000000 ON 15 TH APRIL, 2003. THERE WERE TWO COMPONENTS IN THE AGREE CONSIDERATION. A SUM OF $ 2300000 AS PAYABLE IN LUMPSUM. BALANCE WAS TO BE PAID IN INST ALMENTS OVER YEARS ENDING 31.3.2004, 31.3.2005 AND 31.3.2006. A SSESSEE GAVE THE DETAILS OF RECEIPTS FROM M/S PEROT SYSTEMS, AS UNDER:- SL.NO. PARTICULARS AMT: IN INR ASST-YEAR 01 SALE PRICE @ 23$ FOR 15,000 SHARES 1,59,04,500 2004 - 05 INVESTED IN BONDS 02 CONTINGENT PAYMENT - I 34,08,283.19 2005 - 06 OFFERED AS INCOME FROM CAPITAL GAIN 03 CONTINGENT PAYMENT II 1,05,98,547 2006 - 07 OFFERED AS INCOME FROM CAPITAL GAIN I.T.A. NO. 748/MDS/10 3 04 CONTINGENT PAYMENT - III 3,17,93,411.28 2006 - 07 OFFERED AS INCOME FROM CAPITAL GAIN 3. OUT OF THE ABOVE, PAYMENTS AT SL.NO.3 & 4 WERE R ECEIVED IN THE PREVIOUS YEAR TO THE IMPUGNED ASSESSMENT YEAR. A.O . WAS OF THE OPINION THAT THE AMOUNTS CONSIDERED AS CONTINGENT R ECEIPTS, CLAIMED AS EXEMPT, WERE NOT SO. AS PER THE A.O., PAYMENTS WERE IN RELATION TO THE TRANSFER OF SHARES OF INDIAN COMPANY TO M/S PEROT SYSTEMS. THE SO-CALLED CONTINGENT PAYMENTS WERE LINKED TO TH E NON- COMPETITION AGREEMENTS ENTERED BY THE ASSESSEE WITH M/S PEROT SYSTEMS. IN AN APPLICATION FILED BY SHRI ANURAG JA IN, HUSBAND OF ASSESSEE, WHO WAS ALSO ONE OF THE SHAREHOLDERS OF M /S VHRPL AND WHO ALSO HAD TRANSFERRED HIS SHARES TO M/S PEROT SY STEMS, HONBLE AUTHORITY FOR ADVANCE RULING IN ITS ORDER DATED 30. 3.2005 IN AAR NO.643 OF 2004 HAD HELD THE CONTINGENT PAYMENTS TO BE PROFITS IN LIEU OF SALARY. THUS, THE A.O. DID NOT ACCEPT THE CONTE NTIONS OF THE ASSESSEE THAT THE AMOUNT WAS CAPITAL GAINS OR WAS E XEMPT FROM TAX. HE CONSIDERED THE SUM OF ` 4,23,91,959/- RECEIVED DURING THE RELEVANT PREVIOUS YEAR AS PROFIT IN LIEU OF SALARY AND COMPLETED THE ASSESSMENT. I.T.A. NO. 748/MDS/10 4 4. PROCEEDINGS FOR PENALTY WAS INITIATED UNDER SECT ION 271(1)(C) FOR CONCEALMENT OF PARTICULARS WITH REGARD TO THE A BOVE INCOME. A NOTICE WAS ISSUED UNDER SECTION 271(1)(C) OF THE AC T. REPLY OF THE ASSESSEE WAS THAT THE AMOUNTS RECEIVED ON TRANSFER OF SHARES WERE DULY SHOWN BY HER IN HER RETURN OF INCOME. AS PER A SSESSEE, IN THE PRECEDING ASSESSMENT YEARS, THE AMOUNTS RECEIVED WE RE SHOWN AS INCOME FROM CAPITAL GAINS. AS PER ASSESSEE, FOR TH E IMPUGNED ASSESSMENT YEAR, SHE HAD CLAIMED THE AMOUNT AS EXEM PT ON A HONEST BELIEF THAT THE AMOUNT WAS NOT RELATABLE TO SALE OF SHARES IN M/S VHRPL, BY VIRTUE OF THE DECISION OF AAR ON THE APPLICATION FILED BY ASSESSEES HUSBAND. 5. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT TH E REPLY OF THE ASSESSEE. ACCORDING TO HIM, ASSESSEE HAD CLAIMED A RECEIPT WHICH WAS NOT EXEMPT UNDER THE ACT. GIVING A TAXABLE REC EIPT A NON-TAXABLE COLOUR, MISREPRESENTING IT TO BE SOMETHING ELSE ATT RACTED THE RIGOURS OF SECTION 271(1)(C) OF THE ACT. ASSESSEE NOT ONLY CLAIMED THE SUM OF ` 4,23,91,959/- AS EXEMPT, BUT HAD ALSO CLAIMED A RE FUND OF TAX OF ` 93,21,996/- PAID BY HER. HE, THEREFORE, HELD THAT EXPLANATION 4 TO SECTION 271(1) STOOD ATTRACTED. MINIMUM PENALTY AT 100% OF TAX SOUGHT TO BE EVADED COMING TO ` 1,40,20,656/- WAS IMPOSED. I.T.A. NO. 748/MDS/10 5 6. ASSESSEES APPEAL BEFORE CIT(APPEALS) DID NOT ME ET WITH ANY SUCCESS. LD. CIT(APPEALS) HELD THAT THERE WAS NOTH ING IN SECTION 10, WHICH COULD GIVE AN EXEMPTION TO THE ASSESSEE ON TH E AMOUNTS RECEIVED ON SALE OF SHARES. ASSESSEE, DESPITE HER CLEAR KNOWLEDGE THAT THE SUM WAS TAXABLE, HAD TRIED TO REDUCE HER I NCOME BY CLAIMING IT AS EXEMPT. IN ASSESSMENT YEAR 2004-05, ASSESSEE HAD INVESTED THE LONG TERM CAPITAL GAIN IN NABARD CAPITAL BONDS AND CLAIMED EXEMPTION. HAVING SHOWN SIMILAR AMOUNTS AS A PART OF TAXABLE INCOME IN PRECEDING YEARS, SHE COULD NOT SAY THAT S HE WAS ELIGIBLE FOR ANY EXEMPTION IN THE IMPUGNED ASSESSMENT YEAR. HE THUS CONFIRMED THE LEVY OF PENALTY. 7. NOW BEFORE US, ADV. R. VIJAYARAGHAVAN, APPEARING FOR THE ASSESSEE, STRONGLY ASSAILING THE ORDERS OF AUTHORIT IES BELOW, SUBMITTED THAT ASSESSEE WAS UNDER A GENUINE BELIEF THAT THE AMOUNT COULD NOT BE TAXED IN INDIA. RELYING ON THE DECISI ON OF AUTHORITY FOR ADVANCE RULING IN THE CASE OF ASSESSEES HUSBAND SH RI ANURAG JAIN IN AAR NO.643 OF 2004 DATED 30.3.2005, LEARNED A.R. SUBMITTED THAT THE SUMS RECEIVED WERE CONSIDERED AS PROFITS IN LIE U OF SALARY BY THE HONBLE AUTHORITY FOR ADVANCE RULING IN THE HANDS O F SHRI ANURAG JAIN. ACCORDING TO HIM, THE SAID DECISION WAS AVAI LABLE WITH THE I.T.A. NO. 748/MDS/10 6 ASSESSEE AT THE TIME WHEN SHE FILED RETURN OF INCOM E FOR THE IMPUGNED ASSESSMENT YEAR. SINCE ASSESSEE WAS NOT A N EMPLOYEE OF VHRPL, SHE COULD HOLD A LEGITIMATE BELIEF THAT T HE AMOUNT COULD NOT BE CONSIDERED AS TAXABLE IN HER HAND. IT WAS F OR THIS REASON, SUCH AMOUNT SHOULD BE EXEMPT. IT WAS ONLY A LEGITIMATE CLAIM BY THE ASSESSEE. RELYING ON THE DECISION OF HON'BLE APEX COURT IN THE CASE OF CIT V. RELIANCE PETRO PRODUCTS PVT. LTD. (322 IT R 158), LEARNED A.R. SUBMITTED THAT ASSESSEE HAD ONLY MADE A CLAIM, WHICH WAS FOUND NOT TO BE UNLAWFUL. THERE WAS NO FINDING THA T ASSESSEE HAD FURNISHED ANY INACCURATE PARTICULARS. AS PER THE LE ARNED A.R., THE PENALTY IMPOSED WAS NOT JUSTIFIED. 8. PER CONTRA, LEARNED D.R. SUPPORTING THE ORDERS O F AUTHORITIES BELOW, SUBMITTED THAT THIS TRIBUNAL HAD, IN THE CAS E OF MS. SARITA JAIN, WHO WAS ALSO ONE OF THE SHAREHOLDERS OF M/S VHRPL A ND WHO HAD ALSO TRANSFERRED HER SHARES TO M/S PEROT SYSTEMS, C ONFIRMED THE LEVY OF PENALTY, FOR CLAIMING THE RECEIPTS ON TRANSFER O F SHARES TO BE EXEMPT FROM TAX. 9. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. THERE IS NO DISPUTE THAT ASSESSEE HAD RECEIVED SUMS FROM M/S PEROT SYSTEMS OF NETHERLANDS ON TRANSFER OF HER SHARES IN M/S VHRPL. I.T.A. NO. 748/MDS/10 7 THE AMOUNT RECEIVED AT THE RATE OF $ 23 PER EQUITY SHARE WAS SHOWN BY ASSESSEE IN PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2004-05 UNDER THE HEAD CAPITAL GAINS AND CLAIMED TO BE EXEM PT IN VIEW OF INVESTMENT MADE IN NABARD CAPITAL BONDS. PAYMENT O F ` 34,08,283/- RECEIVED FROM M/S PEROT SYSTEMS, DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2005-06, WAS ALSO OFFERED AS CAPITAL GAINS AND TAX WAS ALSO PAID BY THE ASSESSEE . HOWEVER, SUBSEQUENT RECEIPTS FROM M/S PEROT SYSTEMS RECEIVED IN THE PREVIOUS YEAR RELEVANT TO IMPUGNED ASSESSMENT YEAR, ASSESSEE CLAIMED EXEMPTION. THE COURSE OF EVENTS WHICH UNFOLDED, CL EARLY SHOW THAT ASSESSEE WAS AWARE ABOUT THE NATURE OF AMOUNTS RECE IVED BY HER FROM M/S PEROT SYSTEMS. IN THE IMMEDIATELY PRECEDI NG ASSESSMENT YEAR, SHE HAD PAID THE TAX AND OFFERED THE SAME AS INCOME FROM CAPITAL GAINS. FOR THE IMPUGNED ASSESSMENT YEAR AL SO SHE HAD PAID THE ADVANCE TAX BUT CLAIMED REFUND THEREON CONSIDER ING THE AMOUNT TO BE EXEMPT. AS HELD BY LD. CIT(APPEALS), THERE I S NOTHING UNDER SECTION 10 WHICH WOULD EXEMPT THE GAINS ARISING OUT OF TRANSFER OF SHARES, WHICH IS NOT SUBJECT TO SECURITIES TRANSACT ION TAX, FROM TAXATION. NO DOUBT, AUTHORITY FOR ADVANCE RULING I N THE CASE OF ASSESSEES HUSBAND, HAD HELD THAT THE PAYMENT RECEI VED IN SUBSEQUENT YEARS WERE TO BE CONSIDERED PROFITS IN L IEU OF SALARY. BUT, I.T.A. NO. 748/MDS/10 8 SHRI ANURAG JAIN WAS AN EMPLOYEE OF THE COMPANY, WH EREAS, ASSESSEE WAS NOT. WE ALSO FIND THAT A SIMILAR PENA LTY WAS IMPOSED IN THE CASE OF MS. SARITA JAIN, ONE OF THE FAMILY M EMBERS OF THE ASSESSEE, WHO WAS ALSO HOLDING SHARES IN M/S VHRPL AND WHO HAD ALSO SOLD SUCH SHARES TO M/S PEROT SYSTEMS, FOR CLA IMING THE GAINS TO BE EXEMPT. SUCH LEVY WAS UPHELD BY THIS TRIBUNAL O N REVENUES APPEAL. IT WAS HELD BY THIS TRIBUNAL AT PARAS 12 T O 21, AS UNDER:- 12. THE ASSESSEE HAD SOLD SHARES FOR A CONSIDERATI ON OF ` 5,51,29,555/-. THE SHARES DID NOT BELONG TO ANY LI STED COMPANY. SO ALSO, THE ASSESSEE HAD NOT SUFFERED ANY SECURITIES TRANSACTION TAX AT THE TIME OF SALE. THE LAW RELATING TO EXEMPTION UNDER SECTION 10(36) PROVIDES THAT IN ORDER TO CLAIM EXEMPTION UN DER THAT SECTION, THE SHARES SHOULD BE THAT OF A LISTED COMPANY, AS A RESULT OF WHICH THE PARTIES MUST SUFFER SECURITIES TRANSACTION TAX. AS THE ASSESSEE HAS NOT COMPLIED WITH THE STATUTORY CONDITIONS, IT WAS NOT POSSIBLE FOR THE ASSESSING OFFICER TO ACCEPT THE CLAIM OF EX EMPTION MADE BY THE ASSESSEE. 13. THE CLAIM OF EXEMPTION MADE BY THE ASSESSEE CA NNOT BE TREATED AS AN OPINION OF THE ASSESSEE DIFFERENT FROM THE OPINION OF THE ASSESSING OFFICER. IT IS NOT AN INSTANCE OF DIFFERENT OPINIONS. THE CONDITIONS LAID DOWN UNDER SECTION 1 0(36) ARE MANDATORY. THEY ARE WELL WRITTEN IN THE STATUTE. T HE ASSESSEE WAS HELPED BY A QUALIFIED CHARTERED ACCOUNTANT IN PREPA RING THE STATEMENT OF TAXABLE INCOME AND FILING THE RETURN O F INCOME. IT IS NOT POSSIBLE TO HOLD THAT THE CHARTERED ACCOUNTANT WAS NOT AWARE OF THE PROVISIONS OF LAW STATED IN SECTION 10(36). THE ASSESSEE, HAVING KNOWLEDGE THAT SHE HAS NOT COMPLIED WITH THE STATUTORY CONDITIONS, OUGHT NOT HAVE MADE A CLAIM OF SUCH AN EXEMPTION. IT IS A CLEAR-CUT CASE OF A CLAIM MADE BY THE ASSESSEE FO R AN INELIGIBLE EXEMPTION. I.T.A. NO. 748/MDS/10 9 14. THE JUDGMENT OF THE HONBLE SUPREME COURT IN T HE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD., 3 22 ITR 158, IS NOT APPLICABLE TO THE PRESENT CASE. IN THAT CASE C ONSIDERED BY THE HONBLE SUPREME COURT, THE GENUINENESS OF THE CLAIM MADE BY THE ASSESSEE WAS THE SUBJECT MATTER. IN THE PRESENT CA SE, THE GENUINENESS IS NOT THE LONE QUESTION. ON THE OTHER HAND, THE ELIGIBILITY ITSELF IS IN QUESTION. IT IS NOT A CAS E OF INCORRECT CLAIM CONSIDERED BY THE HONBLE SUPREME COURT IN THE ABOV E STATED CASE. IN THAT CASE THE HONBLE APEX COURT HAS HELD THAT M AKING INCORRECT CLAIM DOES NOT AMOUNT TO CONCEALMENT OF PARTICULARS . HERE IT IS NOT THE CASE OF CONCEALMENT OF PARTICULARS BY WAY OF MA KING AN INCORRECT CLAIM. THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. SRI SARADHA TEXTILE PROCESSORS P. LTD., 286 ITR 499, STILL CONSIDERED ANOTHER DIFFERENT CASE WHERE THE CLAIM M ADE BY THE ASSESSEE WAS ERRONEOUS, WHICH ACCORDING TO THE HON BLE COURT, DID NOT AMOUNT TO CONCEALMENT. 15. IN THE PRESENT CASE, THE ASSESSEE HAS CLAIMED THE EXEMPTION WITHOUT SATISFYING THE STATUTORY CONDITIO NS. THE DISPUTE IS NOT WITH REFERENCE TO THE PARTICULARS OR EVIDENC ES. THE DISPUTE IS WITH REFERENCE TO THE ELIGIBILITY ITSELF. IT IS A CASE OF FALSE CLAIM MADE BY THE ASSESSEE. THEREFORE, THE DECISI ONS RELIED ON BY THE COMMISSIONER OF INCOME-TAX(APPEALS) WILL NOT BE APPLICABLE TO THE PRESENT CASE. THE FACT THAT THE ASSESSEE HAD A LREADY PAID ADVANCE TAX EVEN AGAINST THE SURPLUS ARISING OUT OF THE SALE OF SHARES, DOES NOT ABSOLVE THE ASSESSEE FROM HER OBLI GATION. THIS IS CLEAR FROM THE VERY FACT THE ASSESSEE HAS MADE AN E QUAL CLAIM FOR REFUND, WHICH WOULD HAVE BEEN ACCEPTED UNDER SECTIO N 143(1). BUT, THE ENTIRE CASE CAME TO THE LIGHT ONLY FOR THE REAS ON THAT THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY ASSESSMEN T, WHICH SHOWS THAT THE ASSESSEE WAS TAKING A CHANCE TO EVADE PAYM ENT OF TAX BY MAKING A FALSE CLAIM FOR EXEMPTION WITH A HOPE THAT HER RETURN MIGHT BE PROCESSED UNDER SECTION 143(1). BUT, TO T HE MISFORTUNE OF THE ASSESSEE, THE CASE WAS SELECTED FOR THE SCRUTIN Y AND THE PANDORAS BOX WAS ENTIRELY OPENED. 16. IN THE ABOVE CIRCUMSTANCES, WE DO NOT AGREE WI TH THE COMMISSIONER OF INCOME-TAX(APPEALS) THAT THE PRESEN T CASE IS A SIMPLE CASE OF CHANGE OF OPINION. I.T.A. NO. 748/MDS/10 10 17. THE ASSESSEE HAS FILED COPIES OF THE COMPUTATI ON OF INCOME AND THE OTHER PAPERS FILED BEFORE THE ASSESS ING OFFICER ALONGWITH HER RETURN OF INCOME. WE HAVE GONE THROU GH THE COMPUTATION OF INCOME. THE ASSESSEE HAS GIVEN A NO TE ON INCOME FROM CAPITAL GAINS. WHAT IS STATED IN THE NOTE IS THAT SHE HAS RECEIVED AN AMOUNT OF ` 5,51,29,555/- ON SALE OF SHARES. NOWHERE IT IS MENTIONED THAT THE SHARES DO NOT BELONG TO LI STED COMPANIES OR THE TRANSACTION DID NOT SUFFER SECURITIES TRANSACTI ON TAX. IT IS VERY CLEAR, THEREFORE, THAT THE ASSESSEE HAS NOT FURNISH ED THE NECESSARY PARTICULARS. IT IS A CLEAR CASE OF FURNISHING OF I NACCURATE PARTICULARS INSOFAR AS THE ASSESSEE HAS NOT STATED FULL FACTS OF THE CASE. INSTEAD, THE ASSESSEE HAS TRIED TO MISLEAD T HE ASSESSING OFFICER BY FURNISHING HALF TRUTH. IN THE RETURN PR OPER ALSO THERE IS NO POINTER TOWARDS THE RELEVANT DETAILS OF THE ISSU E. SHE HAS ALSO FILED A CERTIFICATE FROM HER CHARTERED ACCOUNTANTS FROM WHICH IT IS CLEAR THAT THEIR CLIENT WAS UNDER THE IMPRESSION TH AT THE TRANSACTION RELATING TO CAPITAL GAINS WAS EXEMPT FR OM TAX. THERE IS NO MENTION REGARDING THE ROLE OF THE CHARTERED ACCO UNTANT, WHO HAS EVEN ISSUED A CERTIFICATE IN FAVOUR OF THE ASSESSEE . 18. THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS MENTIONED IN HIS ORDER THAT THE VIEW TAKEN BY THE A SSESSEE WAS UPHELD BY DIFFERENT ORDERS OF THE TRIBUNAL. BUT HE HAS NOT DISCUSSED ANY SUCH ORDER OF THE TRIBUNAL IN HIS ORD ER. IN FACT, HE HAS NOT REFERRED TO ANY CASE LAW WHICH WOULD LEAD U S TO GIVE A FINDING THAT THE VIEW TAKEN BY THE ASSESSEE WAS ALS O A POSSIBLE VIEW. 19. BUT, AT THE COST OF REPETITION, WE MAKE IT CLE AR THAT THIS IS NOT A CASE OF CHANGE OF OPINION AT ALL. TH IS IS A CASE OF FALSE CLAIM. THE ASSESSEE IS NOT EVEN ENTITLED FOR THE E XEMPTION. THEREFORE, NO QUESTION OF OPINION ARISES. 20. THIS IS A CLEAR CASE OF FURNISHING OF INACCURA TE PARTICULARS AND A CASE OF ATTEMPT OF CONCEALMENT OF INCOME. THE ASSESSEE WAS HOPING THAT HER RETURN WOULD BE PROCES SED UNDER SECTION 143(1) AND HER CLAIM WOULD GO UNNOTICED. I T IS ONLY BECAUSE OF SCRUTINY ASSESSMENT COMPLETED IN THE CASE THAT T HE ENTIRE MATTER WAS BROUGHT OUT. I.T.A. NO. 748/MDS/10 11 21. IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT THE ASSESSING AUTHORITY IS JUSTIFIED IN LEVYIN G PENALTY IN THIS CASE UNDER SECTION 271(1)(C) OF THE ACT. THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) IS NOT SUSTAINA BLE IN LAW. IT IS SET ASIDE. THE PENALTY ORDER IS RESTORED. 10. JUST BECAUSE THE HONBLE AUTHORITY FOR ADVANCE RULING IN THE CASE OF SHRI ANURAG JAIN HELD THE PAYMENTS RECEIVED BY HIM TO BE PROFITS IN LIEU OF SALARY, WOULD NOT BE SUFFICIENT TO HOLD THAT ASSESSEE COULD HAVE HAD A REASONABLE GROUND FOR BELIEVING TH AT THE GAINS ARISING ON TRANSFER OF SHARES WAS EXEMPT. ESPECIAL LY SO, SINCE ASSESSEE WAS NOT AN EMPLOYEE OF M/S VHRPL AT ALL. WE THUS DO NOT FIND ANY REASON TO DEVIATE FROM THE VIEW TAKEN BY T HE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF MS. SARITA JA IN MENTIONED SUPRA. 11. AS FOR THE RELIANCE PLACED BY THE LEARNED A.R. ON THE DECISION OF HON'BLE APEX COURT IN THE CASE OF RELIANCE PETRO PR ODUCTS PVT. LTD. (SUPRA), THERE IT WAS A CLAIM WHICH WAS LEGALLY POS SIBLE AND NOT A CLAIM WHICH HAD NO LEGAL BACKING AT ALL. HERE, THE CLAIM THAT THE INCOME ON TRANSFER OF SHARES WAS EXEMPT FOR CAPITAL GAINS, HAD NO LEGS TO STAND NOR ANY STATUTORY PROVISION TO SUPPOR T. WE ARE, THEREFORE, OF THE OPINION THAT THIS CASE WOULD NOT HELP THE ASSESSEE. WE THUS DO NOT FIND ANY REASON TO INTERFERE WITH TH E ORDER OF CIT(APPEALS). I.T.A. NO. 748/MDS/10 12 12. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON THURSDAY, THE 26 TH OF SEPTEMBER, 2013, AT CHENNAI. SD/- SD/- (S.S. GODARA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 26 TH SEPTEMBER, 2013. KRI. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A)-IV, CHENNAI-34 (4) DIT (INTERNATIONAL TAXATION), CHENNAI-34 (5) D.R. (6) GUARD FILE