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2011 (4) TMI 684 - ITAT MUMBAIDTAA - Penalty - Business income or capital gain - Revised return - the assessees' were fully aware of the fact that income in question was assessable under the head capital gain yet the assessees' chose to make a claim that the said income was business income and further wrongfully claimed non-taxability of the income by taking shelter under DTAA and making a claim that it had no PE in India - mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee such a claim made in the return cannot amount to concealment of income or furnishing of inaccurate particulars of such income which may attract levy of penalty under section 271(1)(c) of the Act - The fact that section 115AD is a code by itself applicable to FIIs cannot also be the basis to hold that the assessee furnished inaccurate particulars of income - Accordingly decided in the favour of the assessee
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