We notice that the assessing officer has determined the concealed income at Rs.15,84,783/-. However, the additions made in the assessment order was only Rs.1,40,373/- and further the difference in Long term Capital gains between the revised return and the original return was only Rs. 1 1,27,484/-. Thus there is a difference in the amount of ‘concealed income’ determined by the AO, for which the assessing officer has failed to give the details in the penalty order. Be that as it may, we notice that the tax authorities have taken the view that the amount of Long term Capital gain enhanced by the assessee in the revised return of income should be considered as ‘concealed income’, since the assessee had revised the same after receipt of the notice u/s 143(2) of the Act, i.e., according to the tax authorities the notice has prompted the assessee to file the revised return of income hence it was not voluntary. At the time of hearing, the Ld A.R brought to our notice that the AO did not ask for any details at the time of issuing notice u/s 143(2) and hence the question of detection of the discrepancy in the Long Term Capital Gain by the AO does not arise in the instant case. Accordingly he submitted that the Revised return of income was voluntary in nature and the same has also been filed within the due date prescribed in the Act for filing revised return of income. He further submitted that the AO has also recognised the said return in the assessment proceedings. He also placed reliance on the decision rendered by the Delhi bench of Tribunal in the case of ACIT Vs. Ashok Raj Nath (2013)(33 taxmann.com 588), wherein the Tribunal had deleted the penalty levied under identical set of facts.
We have gone through the order passed by Delhi bench of Tribunal referred supra. We notice that the assessee therein had filed revised return of income beyond the time prescribed u/s 139(5) by enhancing the Long term capital gain, after the receipt of notice u/s 143(2) of the Act. Even though the revised return was invalid, the AO completed the assessment by accepting the income declared in the revised return. Under these set of facts, the Tribunal had held that the additional amount of capital gain disclosed in the revised return did not tantamount to detection of concealment of income u/s 271 (1)(c) of the Act.
In the instant case, the revised return of income was filed within the time prescribed u/s 139(5) of the Act. Even though the assessed filed the revised return of income after the receipt of notice u/s 143(2) of the Act, yet the admitted fact remains that the assessing officer did not seek any type of particulars in that notice. Hence the mistake in the Long term Capital gain could not have come to the notice of the AO at that point of time, meaning thereby, it should be construed that the assessee has declared the higher amount of Long term capital gain voluntarily upon its detection. Hence, we are unable to agree with the view of the tax authorities that the revised return of income was not voluntary one, but the assessee was constrined to enhance the Long term capital gain only upon the receipt of notice u/s 143(2) of the Act. Accordingly, we set aside the order of Ld CIT(A) on this issue and direct the assessing officer to delete the penalty levied on the enhanced Capital gain amount.
With regard to the addition of Rs.1,40,373/- made in the assessment order, we notice that the assessee has omitted to declare the same in the revised return of income also and no convincing explanation was given for the same. Hence we confirm the penalty levied on the above said amount.
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