suresh 12-ITXA-492.2015.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.492 OF 2015 Commissioner of Income Tax 3, Pune .... Appellant Vs. Smt. Madhuri Satish Misal .... Respondent Mr. Sham Walve for Appellant. CORAM: S.C. DHARMADHIKARI & PRAKASH D. NAIK, JJ. DATE : SEPTEMBER 19, 2017 P.C: 1. Heard Mr. Sham Walve, appearing for Revenue in support of this appeal. only question proposed by Revenue as substantial question of law appears at page 7, para 5(A). It reads thus: Whether on facts and in circumstances of case and in law, Honourable ITAT was correct in deleting penalty levied u/s 271(1)(c) of Act with respect to additions on account of interest on FDRs with Dena Bank and TDR sale receipts when said incomes were detected by Assessing Officer on Page 1 of 6 ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 10:12:44 ::: suresh 12-ITXA-492.2015.doc examination of books of accounts and not declared voluntarily by assessee in return of income? 2. Thus, deletion of penalty, according to Mr. Walve, raises substantial question of law. 3. Our attention is invited to paragraph 15 of Tribunal's order which notes facts and circumstances in which penalty was imposed. But according to Mr. Walve, having correctly understood those facts, Tribunal is in patent error in deleting penalty. 4. We have perused entire order of Tribunal and which allows assessee's cross objections before us. Assessment Year is 2008 09. appeal of Revenue and cross objections were directed against order of Commissioner of Income Tax (Appeals), Pune, dated 31 7 2012. Commissioner was concerned with correctness of order dated 30 6 2011 of Assessing Officer. 5. Tribunal found that common issue is with Page 2 of 6 ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 10:12:44 ::: suresh 12-ITXA-492.2015.doc regard to penalty imposed by Assessing Officer of Rs.45,38,213/ under Section 271(1)(c) of Income Tax Act, 1961. 6. Certain additions were made to return of income by Assessing Officer on which penalty came to be imposed. 7. assessment order was passed on 31 12 2010 where return of income was enhanced. assessee is individual and she filed her return of income declaring total income of Rs.3,36,690/ . She declared income from house property, salary as well as income under head, Income from other sources . scrutiny assessment was undertaken and various additions came to be made in relation to low household withdrawals, interest income, TDR receipts and short term capital gain. Out of total additions made to return of income, three additions were considered by Assessing Officer to be concealed income within meaning of penalty provision. That is how penalty was imposed and Appellate Authority sustained it. Page 3 of 6 ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 10:12:44 ::: suresh 12-ITXA-492.2015.doc 8. argument was that because assessee came forward to disclose income only during assessment proceedings, penalty has been correctly levied. Tribunal found, in relation to each of income on touchstone of which penalty was imposed, that amounts were deposited in Bank account. They reflected transferable development right sales executed by deceased husband prior to 2002. assessee explained that neither she was owner of TDR assets nor was she party to sale transaction. transaction was executed by her deceased husband. amounts were received by assessee as result of dispute being settled in Court. Such receipt was treated as capital receipt not chargeable to tax and, therefore, it was not offered to tax in return of income. However, during course of assessment assessee agreed to pay tax on same and that is how sum of Rs.1,11,67,378/ was added to total income. 9. It is that amount which has been subjected to levy of Page 4 of 6 ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 10:12:44 ::: suresh 12-ITXA-492.2015.doc penalty primarily on ground that assessee agreed to addition and did not challenge it in appeal. Tribunal in paras 19 to 21 of its order considered principles which have to be invoked and applied for levy of penalty, plain language of statutory provision and peculiar facts. Once assessee is beneficiary of amount received as consequence of transfer executed by her husband, of which she had no knowledge, she offered that during course of assessment proceedings, that does not mean that her act can be brought within penalty provision. explanation rendered by assessee is bona fide. There was no factual dispute. Therefore, in facts and circumstances of case, Tribunal held that assessee has discharged primary burden. There was no material brought by Revenue to show that explanation of assessee is either false or lacking in bona fides. It is in these circumstances, Commissioner was justified in deleting penalty. That view of Commissioner was upheld. We do not think any wider question or larger controversy was dealt with by Tribunal. penalty is Page 5 of 6 ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 10:12:44 ::: suresh 12-ITXA-492.2015.doc deleted essentially in above factual background. There is, therefore, no substantial question of law arising in this appeal. It is dismissed. No costs. (PRAKASH D. NAIK, J.) (S.C. DHARMADHIKARI, J.) Page 6 of 6 ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 10:12:44 ::: TheCommissionerofIncome-tax-3, Pune v. MadhuriSatishMisal