Shri Prabhjit Singh Sidhu, Chandigarh V. The Assistant Director of Income Tax, Chandigarh

ITA 909/CHANDI/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5109 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 08-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 18-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Capital asset; Bonafide belief; Question of law; Revised return
• Section: 139(5); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.909/CHD/2015 (ASSESSMENT YEAR : 2008-09) SHRI PRABHJIT SINGH SIDHU, VS. THE ASSTT. DIRECTOR OF INCOME TAX, # 1289, TOP FLOOR, (INTERNATIONAL TAXATION), BEHIND HOTEL PICCADILLY, CHANDIGARH. SECTOR 22, CHANDIGARH. PAN: BIPPS2213D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SHRI MANJIT SINGH, DR DATE OF HEARING : 20.03.2017 DATE OF PRONOUNCEMENT : 12.06.2017 O R D E R PER ANNAPURNA GUPTA, A.M . : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER PASSED BY THE CIT(APPEALS)-43, NEW DELHI DATED 30..11.2015 PERTAINING TO ASSESSMENT YEAR 2008- 09UPHOLDING THE LEVY OF PENALTY U/S 271(1)(C) OF TH E INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED FOLLOWIBNG GROUNDS OF APPEAL: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN UPHOLDING THE IMPOSITION OF PENALTY OF RS.6,62,805/- WHICH IS ARBITRARY AND UNJUSTIFIED. 2. THAT NO PENALTY UNDER SECTION 271(L)(C) OF THE AC T IS CALLED FOR IN AS MUCH AS THERE HAS NEITHER BEEN ANY CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE 2 PARTICULARS OF INCOME AS SUCH THE ORDER IS UNJUSTIF IED AND ARBITRARY. 3. THE PENALTY UPHELD IS ON A HIGHLY DEBATABLE ISSUE IN AS MUCH AS WHETHER ANY CAPITAL GAINS ACCRUED TO THE ASSESSEE ON AMOUNT RECEIVED IN PART AND LEVIED ON FLAT WHICH IS NOT IN EXISTENCE AND AS SUCH THE PENALTY UPHELD IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 4. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF THE CASE AND IS, THUS, UNTENABLE. 3. THE FACTS RELEVANT TO THE ISSUE ARE THAT A HOUS ING SOCIETY, NAMED AS THE DEFENCE SERVICES COOPERATIVE HOUSE BUILDING SOCIETY LTD. MOHALI (HEREINAFTER REFERRED TO AS 'SOCIETY') CONSISTING OF 207 MEMBERS WAS FORMED, WH ICH WAS THE OWNER OF 27.3 ACRES OF LAND IN VILLAGE KANSAL, DISTRICT MOHALI. THIS SOCIETY ENTERED INTO A TRIPARTITE JOIN T DEVELOPMENT AGREEMENT (HEREINAFTER REFERRED TO AS 'AGREEMENT') ON 27.04.2007 WITH M/S HASH BUILDER (P VT.) LTD., CHANDIGARH AND M/S TATA HOUSING DEVELOPMENT COMPANY LTD., MUMBAI (HEREINAFTER REFERRED TO AS T HDC) BY VIRTUE OF WHICH THE SOCIETY WOULD T RANSFER ITS LAND FOR DEVELOPMENT IN LIEU OF MONETARY CONSIDER ATION AND ALSO CONSIDERATION IN KIND TO THE MEMBERS OF TH E SOCIETY. THE ASSESSEE WAS ALSO A MEMBER OF THE SAI D SOCIETY OWNING 500 SQ. YARDS LAND. THE TOTAL CONS IDERATION WAS SETTLED AT RS.80,00,000/- PLUS ALLOTMENT OF ONE FLAT OF 2250 SQ. FEET TO THE ASSESSEE OUT OF WHICH THE APPE LLANT HAD RECEIVED RS.32 LACS. THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING INCOME OF RS.2,66,143/- ON 31.07.2008. SUBSEQUENTLY, ANOTHER RETURN WAS FILED, ON 06.01.20 10 IN 3 RESPONSE TO NOTICE U/S 148, IN WHICH CAPITAL GAIN O F RS.29,25,000/- ON TRANSFER OF PLOT WAS DECLARED. T HUS, THE ASSESSEE IN HIS ORIGINAL RETURN HAD NOT DISCLOSED T HE CAPITAL GAIN AMOUNTING TO RS. 29,25,000/-. THE ASSESSING OFFICER NOTICED THAT AS PER THE AGREEMENT DATED 27.04.2007, EACH OF THE MEMBERS OF THE SOCIETY INCLUDING THE ASSESSEE, OWNING PLOT OF 500 SQ, YARDS WERE TO RECE IVE RS.80,00,000/~ IN CASH AND A FURNISHED FLAT MEASURI NG 2250 SQ. FT., WITH MARKET VALUE OF RS.1,01,25,000/- , CALCULATED AT THE RATE OF RS.4500/- PER SQ. FT. THU S, THE TOTAL CONSIDERATION RECEIVED BY THE ASSESSEE FOR TR ANSFER OF PLOT CAME TO RS.1,81,25,000/-. THE ASSESSING OFF ICER COMPUTED THE INCOME BY WAY OF CAPITAL GAINS BY ADOP TING THIS AMOUNT AS SALE CONSIDERATION. FINALLY, THE ASSESSMENT WAS MADE BY TAKING CAPITAL GAINS INCOME AT RS.1,78,50,000/-. PENALTY PROCEEDINGS U/S 271(L)(C) WERE ALSO INITIATED. IN THE PENALTY PROCEEDINGS, THE ASS ESSEE HAD FILED A REPLY, BUT THE ASSESSING OFFICER WAS NO T SATISFIED WITH THE EXPLANATION AND LEVIED MINIMUM LEVIABLE PENALTY OF RS.60,76,171/-, STATING THAT TH E ASSESSEE HAD DELIBERATELY CONCEALED PARTICULARS OF INCOME AS THE CAPITAL GAIN WAS NOT DECLARED IN THE ORIGINAL RETURN FILED ON 31.7.2008 AND EVEN IN RESP ONSE TO NOTICE U/S 148 CAPITAL GAIN TO THE TUNE OF RS.29,25,000/- ONLY WAS DECLARED IN THE RETURN FILE D ON 6.1.2010. 4 4. AGGRIEVED BY THE SAME, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(APPEALS). THE LD.CIT(APPEALS) FOUND THAT THE HON'BLE HIGH COURT H AD RESTRICTED THE ADDITION MADE TO THE AMOUNT OF CONSI DERATION ACTUALLY RECEIVED BY THE ASSESSEE VIDE THEIR ORDER IN ITA NO.200 OF 2013 (O&M) DATED 22.7.2015. CONSEQUENTLY , THE LD.CIT(APPEALS) GAVE A SPECIFIC OPPORTUNITY TO THE ASSESSEE TO MAKE ITS SUBMISSION ON WHY PENALTY SHOULD NOT BE LEVIED ON THE CAPITAL GAIN, WHICH HAS BEEN HELD BY THE HON 'BLE HIGH COURT AS TAXABLE IN THE IMPUGNED ORDER SINCE T HE SAME HAD NOT BEEN DECLARED IN THE ORIGINAL RETURN FILED BY THE ASSESSEE BUT ONLY IN THE RETURN FILED IN RESPONSE T O NOTICE U/S 148 OF THE ACT. IN RESPONSE TO THE SAME, THE A SSESSEE VIDE HIS LETTER DATED 17.11.2015 SUBMITTED THAT THO UGH THE IMPUGNED CAPITAL GAIN HAD NOT BEEN INCLUDED IN THE ORIGINAL RETURN FILED, THE POSITIVE INTENTION OF THE ASSESSE E WAS TO DISCLOSE THE SAME IN ITS REVISED RETURN OF INCOME W HICH IS EVIDENT FROM THE FACT BY THE ASSESSEE ON 27.10.2009 WELL BEFORE NOTICE U/S 148 WAS RECEIVED BY THE ASSESSEE ON 21.12.2009. THE ASSESSEE CONTENDED THAT THE REVISED RETURN COULD NOT BE FILED IMMEDIATELY THEREAFTER SINCE THE ASSESSEE WAS OUT OF CITY IN NOVEMBER AND DECEMBER, 2009. THE ASSESSEE CONTENDED THAT IT BONAFIDES ARE DEMONSTRAT ED BY THE FACT THAT THE TAX AND INTEREST WERE DEPOSITED T WO MONTHS BEFORE THE RECEIPT OF NOTICE U/S 148 OF THE ACT ON HIS OWN DESPITE THE FACT THAT THE TAXABILITY OF TRA NSACTION WAS MIRED IN AMBIGUITY AND TRANSACTION WAS SUBJECT TO DIFFERENT OPINIONS AND DOUBTS. THE ASSESSEE FURTHE R STATED 5 THAT THE TOTAL RELIEF HAS BEEN GRANTED BY THE CIT(A PPEALS), CHANDIGARH IN THE CASE OF MRS.SURJIT KAUR WITH EXAC TLY SAME CIRCUMSTANCES AS IN THE CASE OF THE ASSESSEE. THE LD.CIT(APPEALS) AFTER CONSIDERING THE ASSESSEES SUBMISSIONS UPHELD THE LEVY OF PENALTY ON THE CAPIT AL GAINS NOT DISCLOSED IN THE ORIGINAL RETURN OF INCOME TO T HE EXTENT OF RS.29,25,000/- WHICH WAS TAXABLE IN THE IMPUGNED YEAR AS PER THE ORDER OF THE HON'BLE HIGH COURT. THE LD.CIT(APPEALS) HELD THAT THE ASSESSEE HAVING FAILE D TO DISCLOSE THE SAME IN ITS ORIGINAL RETURN FILED ON 3 1.7.2008 HAD CONCEALED PARTICULARS OF HIS INCOME AND MERELY BECAUSE THE ASSESSEE HAD ADMITTED THE CAPITAL GAINS AND PAI D TAXES THEREON, DID NOT ABSOLVE HIM OF HIS GUILT OR WRONG DOING. THE RELEVANT FINDING OF THE LD.CIT(APPEALS) AT PARA 5 OF HIS ORDER IS AS UNDER: 5. IT IS NOTED THAT THE APPELLANT IN HIS RETURN FIL ED ORIGINALLY ON 31.07.2008 DID NOT SHOW THE AMOUNT OF CAPITAL GAIN O N THE UNDISPUTED CONSIDERATION OF RS.3200,000/-. IT WAS ON LY IN THE RETURN OF INCOME WHICH WAS FILED ON 06.01.2010 AF TER A NOTICE U/S 148 WAS RECEIVED THAT THE APPELLANT OWNED UP/SHOWED THE UNDISPUTED ADMITTED AMOUNT OF CAPITAL GAINS AMOUNTING TO RS.29,25,000/-(ARISING ON THE CONSIDERATION OF RS.32,00,000/-). THE APPELLANT HIMS ELF ADMITS THAT CAPITAL GAINS ARISING ON CONSIDERATION OF RS.32,00,000/- WAS TAXABLE. IT IS CLEAR THAT THE AP PELLANT FAILED TO SHOW THIS AMOUNT OF CAPITAL GAINS AMOUNTI NG TO RS.29,25,000/-IN THE RETURN OF INCOME FILED ORIGINALLY ON 31.07.2008. THE MERE FACT THAT THE APPELLANT ADMITTED THE CAPITAL GAINS OF RS.29,25,000/- AND PA ID TAXES THERE UPON DOES NOT ABSOLVE HIM OF HIS GUILT O R WRONG DOING. IT IS THE DUTY OF EVERY TAX PAYER TO PAY TAXE S TRULY AND FULLY ON THE INCOME WHICH ADMITTEDLY IS 6 UNDISPUTED. IT WAS THE APPELLANT'S DUTY TO DISCLOSE H IS TRUE INCOME IN THE RETURN OF INCOME FILED ORIGINALLY ON 31.07,2008, BUT HE FAILED TO DO SO. FURTHER, THE ORDE R OF HON'BLE CIT APPEAL, CHANDIGARH,DATED05.11.2013INTHE CA SE OF SMT. SURJIT KAUR IN APPEAL NO. 625/2012-13 WAS P ASSED WHEN THE ILLUMINATION /GUIDANCE OF ORDER OF HON'BLE PUNJAB AND HARYANA HIGH COURT DATED 22.07.2015, IN ITA NO. 200 OF 2013 (O AND M) WAS NOT AVAILABLE. IN THE ORD ER OF THE HON'BLE HIGH COURT IT HAS BEEN CLEARLY HELD THA T CAPITAL GAINS ARISING OUT OF THE AMOUNTS THAT HAD ALREADY BEEN RECEIVED WAS TAXABLE. AS SUCH, I AGREE WITH THE FINDINGS OF THE AO WHO HAD H ELD IN HIS PENALTY ORDER (AT 5 TH LAST PARAGRAPH), 'THE ASSESSEE HAD DELIBERATELY CONCEALED THE PARTICULARS OF INCOME AS THE CAPITAL GAIN WAS NOT DECLARED IN THE ORIGINAL RETURN FILED ON 31.07.2008 AND EVEN IN RESPONSE TO NOTICE U/S 148, CA PITAL GAIN TO THE TUNE OF RS.29,25,000/- WAS DECLARED IN T HE RETURN FILED ON 06.01.2010. THUS, IT WAS A DELIBERATE CONCEALMENT BY THE ASSESSEE.' I FIND THAT THE APPELL ANT HAD NOT REPORTED HIS INCOME LEADING TO CONCEALMENT, WITHIN THE MEANING OF PROVISIONS OF SECTION 271(1)( C) OF THE IT ACT, 1961. THE AO HAD CALCULATED THE LONG TE RM CAPITAL GAIN ON WHICH PENALTY WAS TO BE LEVIED AT RS.1,78,50,000/-. HOWEVER, PURSUANT TO THE ORDER OF HONBLE PUNJAB AND HARYANA HIGH COURT, THE CAPITAL GAINS UPON WHICH PENALTY U/S 271(L)(C) IS TO BE LEVIED IS DETERMINED AT RS.29,25,000/-. TAX THEREUPON @ 20% BE ING LTCG AND SURCHARGE AND EDUCATIONAL CESS THEREUPON TOTALS TO RS.6,62,805/-( TAX @ 20% AMOUNTING TO RS. 5,85,000/- PLUS SURCHARGE @ 10% ON TAX RS.58,500/- PLUS EDUCATION CESS @ 3% ON 6,43,500/- RS.19,305/-). PEN ALTY U/S 271(L)(C) AT 100% OF RS.6,62,805/- IS HEREBY LE VIED. PENALTY AMOUNTING TO RS.60,76,171 /- IS DOWNSCALED T O RS. 6,62,805/-. THE APPEAL IS DISPOSED OFF ACCORDINGLY. 7 5. AGGRIEVED BY THE SAME, THE ASSESSEE HAS NOW COME UP IN APPEAL BEFORE US. BEFORE US, THE LD. CO UNSEL FOR ASSESSEE REITERATED HIS CONTENTIONS MADE BEFORE THE LD.CIT(APPEALS). THE LD. COUNSEL FOR ASSESSEE STAT ED THAT SINCE THE ISSUE WAS MIRED IN CONTROVERSY, CAPITAL G AINS HAD NOT BEEN DISCLOSED IN THE ORIGINAL RETURN OF INCOME FILED ON 31.7.2008. THE LD. COUNSEL FOR ASSESSEE SUBMITTED THAT THEREAFTER THE ASSESSEE WITH THE INTENT TO DISCLOSE CAPITAL GAINS IN THE AMOUNT ACTUALLY RECEIVED BY IT HAD PAI D TAXES AND WITH THE INTENT OF FILING A REVISED RETURN BUT SINCE HE WAS OUT OF CITY IN NOVEMBER AND DECEMBER, THE REVIS ED RETURN COULD NOT BE FILED. THE LD. COUNSEL FOR ASS ESSEE CONTENDED THAT IN THE MEANWHILE NOTICE U/S 148 WAS RECEIVED BY HIM ON 27.12.2009 IN RESPONSE TO WHICH RETURN WAS FILED DISCLOSING IMPUGNED CAPITAL GAIN. THE LD . COUNSEL FOR ASSESSEE CONTENDED THAT THE ASSESSEE BONAFIDELY WISHED TO DISCLOSE THE SAID AMOUNT IN HIS RETURN OF INCOME AND THAT THE DISCLOSURE IN THE RETURN FILED IN RESPONSE TO N OTICE U/S 148 WAS NOT ON ACCOUNT OF THE FACT THAT THE ASSESSE E HAD BEEN CORNERED BY THE ASSESSING OFFICER. THE LD. CO UNSEL FOR ASSESSEE, THEREFORE, STATED THAT NO PENALTY IN THE PRESENT CIRCUMSTANCES WAS LEVIABLE. 6. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE LD.CIT(APPEALS). 7. WE HAVE HEARD THE RIVAL CONTENTIONS. THE ISSUE BEFORE US PERTAINS TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT FOR CONCEALING OR FURNISHING INACCURATE PARTICULARS OF 8 INCOME RELATING TO CAPITAL GAINS AMOUNTING TO RS.29,25,000/-. 8. THE FACTS WHICH EMERGE BEFORE US AND WHICH ARE RELEVANT FOR THE ADJUDICATION OF THE ISSUE ARE THAT THE ORIGINAL RETURN WAS FILED BY THE ASSESSEE U/S 139(1 ) ON 31.7.2008 WHICH DID NOT DISCLOSE THE SAID CAPITAL G AIN. THE ASSESSEE PAID TAXES ON THE IMPUGNED CAPITAL GAIN I N OCTOBER, 2009. THE CAPITAL GAINS EARNED ON TRANSFE R OF PLOT AMOUNTING TO RS.29,25,000/- WAS DISCLOSED IN THE RE TURN FILED IN RESPONSE TO NOTICE U/S 148 ON 6.1.2010. T HE SAID CAPITAL GAIN HAS BEEN HELD BY THE HON'BLE JURISDICT IONAL HIGH COURT TO THE AMOUNT TO BE ASSESSED IN THE IMPU GNED YEAR VIDE ITS ORDER IN ITA NO.200 OF 2013(O&M) DATE D 22.07.15. 9. THE LD.CIT(APPEALS) AFTER APPRECIATING THE SAID FACTS UPHELD THE LEVY PENALTY U/S 271(1)(C) OF THE ACT ON ACCOUNT OF THE FACT THAT THE CAPITAL GAINS WAS NOT DISCLOSED IN THE ORIGINAL RETURN OF INCOME ,DISREGARDING THE RETURN FILED U/S 148, SINCE HE HELD THAT IT WAS ASSESSEES DUTY TO DISCLOSE THE SAID INCOME IN THE RETURN ORIGINALLY F ILED. THE LD.CIT(APPEALS) HELD THAT THE ASSESSEE HAD DELIBER ATELY CONCEALED THE PARTICULARS OF INCOME IN THE ORIGINAL RETURN FILED. THE CONTENTION OF THE LD. COUNSEL FOR ASSES SEE, ON THE OTHER HAND, HAS BEEN THAT THE DISCLOSURE IN THE ORI GINAL RETURN WAS NOT DELIBERATE, THE ASSESSEE BONAFIDELY DISCLOSED THE SAID CAPITAL GAINS IN THE RETURN OF INCOME FILE D U/S 148 BEFORE DETECTION OF CONCEALMENT BY THE ASSESSING OF FICER 9 WHICH IS EVIDENT FROM THE FACT THAT THE TAX ON THE SAID INCOME WAS PAID TWO MONTHS PRIOR TO THE RECEIPT OF NOTICE U/S 148 OF THE ACT. AS PER THE ASSESSEE, CONCEALME NT HAS TO BE SEEN VIS--VIS RETURN FILED U/S 148 AND NOT V IS--VIS ORIGINAL RETURN FILED. 10. THE LIMITED QUESTION BEFORE US IS WHETHER CONCEALMENT OF INCOME HAS TO BE SEEN VIS--VIS ORIG INAL RETURN FILED OR VIS--VIS THE RETURN REVISED U/S 14 8 OF THE INCOME TAX ACT, 1961. 11. THE HON'BLE COURTS HAVE DEALT WITH THIS ISSUE IN A NUMBER OF CASES AND THE POSITION OF LAW WHICH EMERG ES IS THAT THE CONCEALMENT OF INCOME HAS TO BE SEEN VIS- -VIS ORIGINAL RETURN OF INCOME FILED U/S 139(1). BUT AT THE SAME TIME IT HAS BEEN HELD IN A NUMBER OF DECISIONS THA T, AN INADVERTENT ERROR OR OMISSION IN THE ORIGINAL RETUR N OF INCOME, CORRECTED BY WAY OF REVISED RETURN, SHALL N OT ATTRACT PENALTY U/S 271(1)(C) OF THE ACT. THE MADRAS HIGH COURT IN THE CASE OF CIT VS. J K A SUBRAMANIA CHETTIAR [1977 ]110 ITR 602 (MAD.) HELD AS UNDER: THERE WOULD APPEAR TO BE A MIXING UP OF TWO THINGS (1) THE ACT OF FILING OF THE SUBSEQUENT RETURN GIVING FULL PARTICU LARS OF THE INCOME, WHILE IN THE ORIGINAL RETURN THE ASSESSEE HAD DELIBERATELY F URNISHED INACCURATE PARTICULARS OF INCOME, AND (2) THE STAGE AND THE TI ME AT WHICH THE SUBSEQUENT RETURN WAS FILED, NAMELY, WHETHER IT WAS DONE VOLUN TARILY OR AT THE TIME WHEN THE DEPARTMENT HAD PROBED INTO THE MATTER AND WAS A T THE POINT OF DISCOVERING THE CONCEALMENT MADE BY THE ASSESSEE. T HE SECOND ASPECT WILL HAVE NO RELEVANCY WHATEVER TO A CASE WHERE THERE WA S CONCEALMENT IN THE ORIGINAL RETURN, BECAUSE THE CONCEALMENT MUST NECES SARILY IMPLY A DELIBERATE AND INTENTIONAL ACT, ON THE PART OF THE ASSESSEE. A FTER HAVING ORIGINALLY CONCEALED THE INCOME, IF AN ASSESSEE SUBSEQUENTLY F ILES A FRESH RETURN VOLUNTARILY BEFORE THE IT DEPARTMENT HAS MADE ANY I NVESTIGATION OR DETECTED CONCEALMENT OF INCOME, EVEN THEN HE CANNOT ESCAPE F ROM THE CONSEQUENCE OF HIS HAVING CONCEALED THE INCOME AND HE WILL BE LIAB LE TO PENALTY. IF, ON THE OTHER HAND, THE DEFECT IN THE ORIGINAL RETURN WAS M ERELY AN INADVERTENT OMISSION OR UNINTENDED WRONG STATEMENT, CERTAINLY T HE ASSESSEE HAD A RIGHT TO HAVE THE SAME CORRECTED AND TO FILE A REVISED RE TURN UNDER S. 22(3) OF THE 1922 ACT OR UNDER S. 139(5) OF THE ACT AND WHETHER THE ASSESSEE SO FILES A 10 REVISED RETURN VOLUNTARILY OR AFTER THE ITO HAS NOT ICED THE OMISSION OR WRONG STATEMENT WILL BE TOTALLY IMMATERIAL 12. IT HAS ALSO BEEN HELD THAT VOLUNTARY DISCLOSUR E OF INCOME IN REVISED RETURN BEFORE DETECTION BY THE AS SESSING OFFICER AND ASSESSMENT ON THE BASIS OF SUCH DISCLOS URE WOULD NOT ATTRACT PENALTY. THE HONBLE ALLAHBAD HIG H COURT IN THE CASE OF CHEAP CYCLE STORES VS COMMISSIONER O F INCOME TAX (2006) 281 ITR 0166 LAID DOWN THE SAID PROPOSITION AS UNDER: THE ORDER-SHEET ENTRY DT. 27TH SEPT., 1978, DOES NOT MEN TION ANYTHING ABOUT CONCEALMENT IN THE CLOSING STOCK HAVI NG BEEN DETECTED BY THE AO. REVISED RETURN WAS FILED ON 26TH OCT., 1978. IT MAY BE MENTIONED HERE THAT THE APPLICANT HAVIN G FILED ORIGINAL RETURN WITHIN THE STATUTORY PERIOD AS PROVIDE D UNDER S. 139(1), IT WAS ENTITLED TO FILE A REVISED RETURN UNDER THE PROVISIONS OF S. 139(5). THUS, THE REVISED RETURN FILED UNDER S. 139(5) WAS A VALID RETURN AND WAS TO BE TAKEN INTO CONSIDERATION. NO CONCEALMENT HAVING BEEN FOUND IN T HE REVISED RETURN, THE PENALTY IN RESPECT OF THE INCOME DECLARED IN THE RETURN ORIGINALLY FILED COULD NOT HAVE BEEN TAKEN AS THE CONCEALMENT HAD NOT YET BEEN DETECTED BY THE AO UP TILL THE TIME REVISED RETURN WAS FILED. THE AAC HAD RIGHTLY CON SIDERED THE ORDER-SHEET ENTRY DT. 27TH SEPT., 1978, WHILE RECORDI NG FINDING THAT TILL THEN NO CONCEALMENT HAD BEEN DETECT ED. THE TRIBUNAL WAS NOT JUSTIFIED IN UPHOLDING THAT THE APPL ICANT HAD CONCEALED THE PARTICULARS OF THE TURNOVER AND REVISE D RETURN WAS ONLY A COVER UP. 13. HON'BLE COURTS HAVE ALSO HELD THAT DISCLOSURE OF ADDITIONAL INCOME IN REVISED RETURN SHALL NOT ABSOL VE THE ASSESSEE OF THE CHARGE OF CONCEALMENT IF THE OMISSI ON TO DISCLOSE THE SAME IN THE ORIGINAL RETURN WAS CONSCI OUS AND WILLFUL. IN THE CASE OF MOHD. IBRAHIM AZIMULLA VS. CIT 131 ITR 680 (ALL.) THE HON'BLE ALLAHABAD HIGH COURT HEL D AS UNDER: IN CASE OF DISCOVERY OR WRONG STATEMENT THE ASSESS EE MAY FILE REVISED RETURN UNDER S. 139(5), THE ACCEPTANCE OF WHICH DEPENDS ON FULFILMENT OF THESE ESSENTIALS. IT IS NOT TH E VOLUNTARY DISCLOSURE BUT THE DISCLOSURE IN THE CIRCUMST ANCES MENTIONED IN THE SECTION WHICH ENURES TO BENEFIT OF ASSESSEE 11 AS A DISCLOSURE MAY BE VOLUNTARY YET DISHONEST. IF TH E DISCLOSURE IS TO COVER UP OR WAS IN KNOWLEDGE OF ASS ESSEE OR MADE IN BAD FAITH THEN IT DOES NOT COME WITHIN AMBIT O F S. 139(5) NOR CAN ASSESSEE CLAIM ANY BENEFIT ON IT. THE O RIGINAL AND REVISED RETURN BECOME ONE IF THEY ARE IN ACCORD ANCE WITH SS. 139(1) AND (5) BUT NOT OTHERWISE. THE GUILT OF NON- DISCLOSURE IS NOT WASHED OFF BY ADMISSION OR CONFESSI ON. THE MERE FILING OF REVISED RETURN THEREFORE DOES NOT RU LE OUT APPLICABILITY OF S. 271. 14. IN THE CASE OF CIT VS. SURESH CHAND MITTAL, 25 1 ITR 9 (SC), HE HON'BLE APEX COURT UPHELD THE ORDER OF THE HON'BLE MADHYA PRADESH HIGH COURT WHICH HAD HELD TH AT WHERE THE REVISED RETURN HAS BEEN REGULARIZED BY TH E REVENUE AND THE EXPLANATION OF THE ASSESSEE FOR DEC LARING ADDITIONAL INCOME IN THE SAID RETURN FOUND TO BE BO NAFIDE, THERE WAS NO CASE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. THE RELEVANT FINDINGS OF THE HON'BLE HIGH CO URT, UPHELD BY THE HON'BLE APEX COURT, AT PARAS 6 AND 7 OF THE ORDER ARE AS UNDER: 6.WE FIND OURSELVES IN AGREEMENT WITH THE VIEW TAKEN BY THE TRIBUNAL. IT IS WELL SETTLED THAT UNDER S. 271(C), INITIAL BURD EN LIES ON THE REVENUE TO ESTABLISH THAT ASSESSEE HAD CONCEALED THE INCOME OR HAD FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THE BURDEN SHIFTS TO THE ASSESSEE ONLY IF HE FAILS TO OFFER ANY EXPLANATION FOR THE UNDISCLOSED INCOME OR OFFERS EXPLANATION WHICH IS FOUND TO BE FALSE BY THE ASSESSI NG AUTHORITY. HOWEVER, PROVISO TO EXPLN. 1 PROVIDES FOR SHI FTING OF THIS BURDEN AGAIN WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FOUND TO BE BONA FIDE. 7. IN THE PRESENT CASE, THOUGH IT IS TRUE THAT ASSESSEE HAD NOT SURRENDERED AT ALL AND THAT HE HAD DONE SO ON THE PER SISTENT QUERIES MADE BY AO BUT ONCE THE REVISED ASSESSMENT W AS REGULARISED BY THE REVENUE AND ONCE THE ASSESSING A UTHORITY HAD FAILED TO TAKE ANY OBJECTION IN THE MATTER, THE D ECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETUR NS AND HIS EXPLANATION THAT HE HAD DONE SO TO BUY PEACE WITH TH E DEPARTMENT AND TO COME OUT OF VEXED LITIGATION COULD BE TREATED AS BONA FIDE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THEREFORE, TRIBUNAL WAS JUSTIFIED IN CANCELLING T HE PENALTY LEVIED BY AO AND AFFIRMED BY CIT(A) IN THE FA CTS AND CIRCUMSTANCES OF THE CASE. THIS REFERENCE IS ACCORDI NGLY 12 ANSWERED IN AFFIRMATIVE HOLDING THAT TRIBUNAL WAS JUS TIFIED IN DOING SO. 15. IN THE CASE OF CIT VS RAJIV GARG & OTHERS, TH E HON'BLE JURISDICTIONAL HIGH COURT HAS APPLIED THE A FORESAID PROPOSITION OF THE HON'BLE APEX COURT AND DELETED T HE LEVY OF PENALTY. THE HON'BLE HIGH COURT HELD IN THE SAI D CASE THAT AFTER HEARING THE LEARNED COUNSEL FOR THE APPELLANT, W E DO NOT FIND ANY MERIT IN THIS APPEAL. UNDISPUTEDLY, THE ASSESSEE FILED THE RETURN OF INCOME DECLARING ITS TOTAL INCOME AT RS . 47,05,230, WHICH INTER ALIA INCLUDED LONG-TERM CAPITAL GAIN ON SALE OF SHARES AMOUNTING TO RS. 29,74,951. THE RETURN WAS PROCE SSED IN TERMS OF S. 143(1)(A) OF THE ACT ON 15TH MARCH, 199 9. SUBSEQUENTLY, ON THE BASIS OF SOME INFORMATION WITH R EGARD TO SALE PROCEEDS OF THE SHARES AMOUNTING TO RS. 32,40,385 ON WHICH THE CAPITAL GAIN WAS DECLARED AT RS. 29,74,951 BY THE ASSESSEE IN THE ORIGINAL RETURN, A NOTICE UNDER S. 148 OF THE ACT WAS ISSUED. PURSUANT TO THE SAID NOTICE, THE ASSESSE E FILED THE REVISED RETURN OF INCOME SHOWING HIGHER INCOME. THE SAID RETURN OF INCOME WAS ACCOMPANIED BY A NOTE IN WHICH THE ASSESSEE SUBMITTED THAT HE SURRENDERED THE ENTIRE AM OUNT OF SALE PROCEEDS OF SHARES TO BUY PEACE OF MIND AND TO AVOID HAZARDS OF LITIGATION AND ALSO TO SAVE HIMSELF FROM AN Y PENAL ACTION. LATER ON, ON THE BASIS OF REVISED RETURN, THE ASSESSMENT WAS FRAMED AND THE RETURN SUBMITTED BY THE ASSESSEE WAS REGULARIZED AS IT IS. DURING THE COURSE OF ASSESSMEN T, THE AFORESAID EXPLANATION GIVEN BY THE ASSESSEE WAS NEITH ER REJECTED NOR IT WAS HELD TO BE MALA FIDE. THE TRIBUNA L HAS RECORDED A PURE FINDING OF FACT TO THE EFFECT THAT THE REVENUE HAS NOT PLACED ON RECORD ANY MATERIAL OR EVIDENCE TO DISCHARGE ITS BURDEN OF PROVING CONCEALMENT. IN THE ASSESSMENT ORDER NO SUCH FINDING WAS RECORDED. THE DEPARTMENT HAS SIMPLY RESTED ITS CONCLUSION ON THE ACT OF ASSESSEE OF HAVING OFFER ED ADDITIONAL INCOME IN THE RETURN FILED IN RESPONSE TO T HE NOTICE ISSUED UNDER S. 148 OF THE ACT. THE TRIBUNAL HAS FURTH ER HELD THAT THE ADDITIONAL INCOME SO OFFERED BY THE ASSESSEE WAS DONE IN GOOD FAITH AND TO BUY PEACE. THE TRIBUNAL HAS RELIE D UPON THE DECISION OF THE APEX COURT IN CASE OF CIT VS. S URESH CHANDRA MITTAL (2001) 170 CTR (SC) 182 : (2001) 251 ITR 9 (SC) WHEREIN THE SUPREME COURT HAS UPHELD THE DECISIO N OF THE MADHYA PRADESH HIGH COURT IN CIT VS. SURESH CHANDRA MITTAL (2000) 158 CTR (MP) 26 : (2000) 241 ITR 124 (MP), WHERE IN SIMILAR CIRCUMSTANCES IT WAS HELD THAT THE INITIAL BURDE N LIES ON THE REVENUE TO ESTABLISH THAT THE ASSESSEE HAD CONC EALED THE INCOME OR HAD FURNISHED INACCURATE PARTICULARS OF SU CH INCOME. THE BURDEN SHIFTS TO THE ASSESSEE ONLY IF HE FAILS T O OFFER ANY EXPLANATION FOR THE UNDISCLOSED INCOME OR OFFERS AN EXPLANATION WHICH IS FOUND TO BE FALSE BY THE ASSESSING AUTHORIT Y. IN THE 13 PRESENT CASE, IN PURSUANCE OF THE NOTICE UNDER S. 148 OF THE ACT, THE REVISED RETURN OF INCOME WAS FILED IN WHICH THE ENTIRE INCOME WAS SURRENDERED WITH AN EXPLANATION. THE REVIS ED ASSESSMENT WAS REGULARIZED BY THE REVENUE. THE ASSES SING AUTHORITY HAD FAILED TO TAKE ANY OBJECTION THAT THE D ECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETURN AND IN HIS EXPLANATION WAS NOT BONA FIDE. THEREFORE, IN VIEW OF THE AFORESAID FINDING, THE TRIBUNAL WAS JUSTIFIED IN UP HOLDING THE ORDER OF THE CIT(A), WHEREBY THE PENALTY IMPOSED UNDE R S. 271(1)(C) OF THE ACT BY THE AO WAS ORDERED TO BE DELETED. 8. IN VIEW OF THE AFORESAID DISCUSSION, WE ARE OF THE OPINION THAT NO SUBSTANTIAL QUESTION OF LAW IS ARISING IN THIS APPEAL. HENCE, FINDING NO MERITS IN THE APPEALS, THE SAME ARE HEREBY DISMISSED. 16. THE POSITION WHICH EMERGES, THEREFORE, IS THAT THE ASSESSEE CANNOT BE CHARGED WITH HAVING BEEN CONCEAL ED PARTICULARS OF HIS INCOME IF; I) NON-DISCLOSURE IN THE ORIGINAL RETURN WAS NOT WI LLFUL; II) THE SAME IS DISCLOSED IN THE RETURN OF INCOME F ILED U/S 148 OR REVISED RETURN U/S 139(5), BEFORE DETECT ION BY THE ASSESSING OFFICER; III) THE RETURN U/S 148/139(5) IS REGULARIZED BY TH E REVENUE; AND IV) THE EXPLANATION OF THE ASSESSEE FOR INCLUDING T HE SAME IN THE REVISED RETURN OR RETURN FILED IN RESPO NSE TO NOTICE U/S 148 IS FOUND TO BE BONAFIDE. 17. APPLYING THE AFORESAID LEGAL POSITION TO THE F ACTS OF THE PRESENT CASE, WE FIND THAT THE ASSESSEE HAD DEMONSTRATED THAT THE NON-DISCLOSURE OF THE CAPITA L GAIN AMOUNTING TO RS.29,25,000/- WAS NOT WILLFUL. THE R EASONS GIVEN BY THE ASSESSEE DURING ASSESSMENT PROCEEDINGS FOR NOT INCLUDING THE CAPITAL GAIN IN THE RETURN OF INC OME, VIDE 14 HIS REPLY DATED 14.12.2010, REPRODUCED IN THE ASSES SMENT ORDER IS AS UNDER : 1. AS ALREADY MENTIONED IN OUR EARLIER LETTER DATE D 05.10.2010 THAT THE AMOUNT RECEIVED UNDER THE AGREEMENT IS ACT UALLY ADVANCES RECEIVED AND NOT THE SALE CONSIDERATION AN D THE LAND TRANSFERRED IN FAVOUR OF THDC LTD. IS ONLY ON ACCOU NT OF SECURITY. A LETTER FROM THE SOCIETY TO THAT EFFECT HAD ALSO BEEN ENCLOSED. THE HANDING OVER THE POSSESSION OF THE LA ND WAS ONLY TO FACILITATE TATAS FOR SECURING OF VARIO US PERMISSIONS FROM THE AGREEMENT. AND TILL DATE ALL T HOSE PERMISSION HAVE NOT YET BEEN OBTAINED. MOREOVER HANDING OVER OF THE PART POSSESSION OF LAND DOES NOT HAVE THE EFFECT OF TRANSFERRING OR EN ABLING THE ENJOYMENT OF ANY IMMOVABLE PROPERTY OR ANY RIGHT THEREIN AS THE TRANSFER WAS CONDITIONAL I.E. SUBJECT TO GRANT OF VARIOUS PERMISSIONS FROM THE GOVT AUTHORIT IES. THE AGREEMENT UNDER REFERENCE IS ONLY AN AGREEMENT TO S ELL AND NOT A SALE DEED AND HENCE CAPITAL GAIN SHOULD NOT A RISE. 3. TAX LIABILITY SHOULD ARISE ONLY TO THE EXTENT O F COMPLETED TRANSACTION AND FOR WHICH CONSIDERATION HAS BEEN RECEIVED. THE ASSESSEE HAS FULLY DISCHARGE D HIS LIABILITY ALONGWITH INTEREST EVEN BEFORE THE IS SUE OF NOTICE TO THAT EXTENT. THERE CAN BE ONLY TAX LIABIL ITYON AN INCOMPLETE TRANSACTION. 4. IN THE LETTER FULL NOTIONAL VALUE OF FLAT HAS BE EN CONSIDERED, WHICH WILL BE GIVEN ONLY AFTER FULL LAN D HAS BEEN TRANSFERRED, BUT AT PRESENT ONLY A PART OF LAND HAS BEEN TRANSFERRED, NO CONSIDERATION ON ACCOUNT OF FLAT IS AVAILABLE AND EVEN THE MONETARY CONSIDERATION HAS ONLY BEEN RECEIVED ONLY IN PART ( IN THAT AY ONLY) TILL DATE. 5. THE DEVELOPER HAS NOT EVEN ACQUIRED THE LAND TIL L DATE HAS NOT EVEN OBTAINED THE PERMISSIONS TO START DEVELOPMENT. THE MATTER IS AT PRESENT MIRED IN WHO LE LOT OF CONTROVERSIES AND IS AT PRESENT SUBJUDICE. SO THERE IS NO QUESTION OF CONSTRUCTION OF FLATS IN TH E NEAR 15 FUTURE AT LEAST, AND EVEN THE WHOLE PROJECT MAY BE SHELVED THERE IS NO CAPITAL ASSET IN EXISTENCE AS O N DATE WHICH THE NOTIONAL VALUE IS BEING CONSIDERED. 6. AS PER COLUMN 9.3 OF THE AGREEMENT, OWNERSHIP HA S NOT BEEN TRANSFERRED, ONLY THE DEVELOPMENT RIGHT HA S BEEN TRANSFERRED, THEREFORE THERE IS NO PROPERTY UN DER SEC. 53A OF TRANSFER OF PROPERTY ACT. 7. IT IS MENTIONED IN THE AGREEMENT THAT ALLOTMENT RIGHTS HAVE BEEN SURRENDERED BY THE MEMBERS IN FAVOUR OF SOCIETY AND NOT IN FAVOUR OF BUYERS. SO IT DOES NOT FALL WITHIN THE DEFINITION OF TRANSFER OF PROPERTY U/S 2 (14) & 2(47). 8. AS PER THE TERMINATION CLAUSE OF THE AGREEMENT, THE AGREEMENT CAN BE TERMINATED UNDER VARIOUS CONDITIONS. AND IN THAT EVENT LAND TRANSFERRED WILL BE RETAINED BY TATA AND NO FURTHER CONSIDERATION SHALL BE GIVEN TO THE MEMBERS. IT IS CLEARLY EVIDENT THA T AN INORDINATE DELAY AHS ALREADY OCCURRED AND IT WILL N OT BE FAIR AND EQUITABLE TO TAX A PERSON ON A MONEY WHICH HAS NOT BEEN RECEIVED EVEN AFTER MORE THAN 3 AND HALF YEARS AFTER THE DATE OF AGREEMENT AND THER E IS A HIGH POSSIBILITY THAT IT MAY NEVER BE RECEIVED AT ALL. 9. IT IS CLEARLY MENTIONED IN THE AGREEMENT THAT TH E POSSESSION OF THE PROPERTY HAS BEEN HANDED OVER ONL Y TO DEVELOP THE PROPERTY AS IT IS A TRIPARTITE JOINT DEVELOPMENT AGREEMENT. THE PAYMENT TO MEMBERS WAS TO BE MADE BY THE MEMBERS ON PRO RATA ON TRANSFER O F LAND. THE PAYMENT OF CONSIDERATION IS DIRECTLY LINK ED TO THE TRANSFER OF LAND IN FAVOUR OF DEVELOPER. TH E CONSIDERATION WILL NOT BE RECEIVED IF THE LAND IS N OT TRANSFERRED. AND THE POSSESSION HAS BEEN TRANSFERRE D ONLY FOR DEVELOPMENT AND THE TERMINATION CLAUSE STATES THAT IF THE AGREEMENT IS TERMINATED THE TATA WILL RETAIN THE LAND ALREADY TRANSFERRED AND THE REMAINING LAND WILL BE HANDED OVER BACK TO MEMBERS. AND ACTUALLY, NO DEVELOPMENT WORK AHS BEEN UNDERTAKEN TILL DATE BECAUSE THE STIPULATED CONDITI ONS 16 HAVE NOT BEEN COMPLIED WITH SEC. 53A OF TRANSFER OF PROPERTY ACT DOES NOT APPLY EXCEPT TO THE EXTENT OF LAND TRANSFERRED BY WAY OF TRANSFER DEED. 18. THE ABOVE ARGUMENTS DID NOT FIND FAVOUR EITHER WITH THE ASSESSING OFFICER, THE CIT(APPEALS) OR EVE N THE ITAT WHO HELD THAT THE TRANSFER TOOK PLACE IN THE I MPUGNED YEAR AND THUS THE ENTIRE CONSIDERATION RECEIVABLE W AS LIABLE TO BE TAXED IN THE IMPUGNED YEAR. THE HONBLE HIGH COURT IN TURN HELD ONLY THE PORTION OF LANDS TRANSFERRED BY WAY OF REGISTERED SALE DEED AS BEING TRANSFERRED AND CONSE QUENTLY THE COMPENSATION RECEIVED ON ACCOUNT OF THE SAME AS TAXABLE DURING THE YEAR. THE LD .COUNSEL FOR THE AS SESSEE DREW ATTENTION TO THE ORDERS OF THE ITAT AND THE HO NBLE HIGH COURT IN THIS REGARD. 19. THE ABOVE CLEARLY PROVE THAT NON-DISCLOSURE O F THE CAPITAL GAIN IN THE ORIGINAL RETURN WAS BASED O N A BONAFIDE BELIEF AND EVEN OTHERWISE THE TAXABILITY O F THE CAPITAL GINS ARISING FROM THE SAID TRANSACTION WAS MIRED IN CONTROVERSY. THUS CLEARLY THE NON DISCLOSURE OF THE CAPITAL GAIN IN THE ORIGINAL RETURN OF INCOME WAS NOT WILLF UL ON THE PART OF THE ASSESSEE. THE CONTENTION OF THE LD. DR THAT THE PAYMENT OF TAXES ON THE SAME BY THE ASSESSEE IN OCT OBER, 2009 AND HIS INTENTION TO DISCLOSE THE SAME REVEALS THAT THE ASSESSEE WAS AWARE THAT THE SAID INCOME WAS TAXABLE IN THE IMPUGNED YEAR MERITS NO CONSIDERATION. THAT THE IS SUE WAS CONTROVERSIAL HAVING BEEN ESTABLISHED, MERELY BECAU SE THE ASSESSEE VOLUNTARILY INTENDED TO DISCLOSE THE SAME IN THE RETURN OF INCOME DOES NOT TAKE AWAY THE CONTROVERSY IN THE 17 SAME OR FOR THAT MATTER ESTABLISH THAT IT WAS FREE OF CONTROVERSY. 20. FURTHER THE FACTS BEFORE US ALSO DEMONSTRATE T HAT THE DISCLOSURE IN THE RETURN OF INCOME FILED U/S 14 8 OF THE ACT WAS VOLUNTARY AND BEFORE DETECTION OF THE SAME BY THE REVENUE. THE PAYMENT OF TAXES ON THE SAID INCOME T WO MONTHS PRIOR TO ISSUE OF NOTICE U/S 148 BY THE REVE NUE REVEALS THAT THE ASSESSEE INTENDED TO DISCLOSE THE SAME BY WAY OF REVISED RETURN WHICH HE COULD HAVE VALIDLY D ONE IN THE SAID PERIOD SINCE THE LIMITATION FOR FILING THE REVISED RETURN EXPIRED ON 31.3.2010 WHILE THE ASSESSEE HAD PAID TAXES ON THE IMPUGNED CAPITAL GAIN IN THE MONTH OF OCTOBER 2009. THE EXPLANATION OF THE ASSESSEE THAT HE DID NOT DISCLOSE THE SAME BY WAY OF A REVISED RETURN IN NOV EMBER AND DECEMBER, 2009 AFTER PAYING TAXES IN OCTOBER, 2 009, ON ACCOUNT OF THE FACT OR FOR THE REASON THAT HE WAS O UT OF THE CITY, HAS NEITHER BEEN CONTROVERTED BY THE REVENUE, NOR PROVED TO BE FALSE. THEREFORE, THE DISCLOSURE OF T HE SAME IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF T HE ACT ON 2.1.2010 CANNOT BE SAID TO BE AFTER DETECTION OF TH E SAID INCOME BY THE ASSESSING OFFICER. 21. MOREOVER WE FIND THAT THE RETURN FILED IN RESP ONSE TO NOTICE U/S 148 DISCLOSING THE IMPUGNED CAPITAL G AINS HAS BEEN REGULARIZED BY THE REVENUE. FURTHER THE B ONAFIDES OF THE ASSESSEE ALSO STAND ESTABLISHED SINCE HE HAD BONAFIDELY NOT DISCLOSED THE SAME IN HIS RETURN OF INCOME AND INTENDED DISCLOSING THEREAFTER BY PAYING TAXES ON THE 18 SAME EVEN BEFORE NOTICE U/S 148 WAS ISSUED. THUS THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF RAJIV GARG SQUARELY APPLIES IN THE PRESENT CASE, FOLLOWIN G WHICH WE HOLD THE ASSESSEE CANNOT BE HELD TO HAVE CONCEAL ED PARTICULARS OF HIS INCOME RELATING TO CAPITAL GAINS AMOUNTING TO RS.29,25,000/-. THE PENALTY LEVIED U/ S 271(1)(C) OF THE ACT IS, THEREFORE, DELETED AND THE ORDER OF THE CIT(APPEALS) SET ASIDE. 22. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12 TH JUNE, 2017 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH