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2013 (5) TMI 444 - ITAT MUMBAIPenalty u/s. 271(1)(c) - addition made in respect of service charges - assessee is member of Bombay Stock Exchange mainly engaged in business of share broking - Held that:- Disallowance was made by treating the said payment as capital expenditure. There is no charge of furnishing of inaccurate particulars or for concealment of particulars of income. Thus, on these facts, it cannot be held that the assessee is guilty of furnishing inaccurate particulars or has concealed particulars of income. The nature of payment has also not been disputed. The only dispute relates to whether can be allowed as recalled expenditure or capital expenditure. Thus under these circumstances we do not feel that penalty under Section 271(1)(c) can be levied. Penalty u/s. 271(1)(c) - addition made in respect of speculation loss - Held that:- Tribunal has held that in value of shares in the closing stock can be allowed as loss. However, it was subsequently only that the Hon'ble jurisdictional High Court has settled this issue while holding it to be speculative loss. Thus, at the time of filing of return there was a possible view in favour of the assessee and therefore, it would not be held that assessee had either furnished any inaccurate particulars of income or has concealed the particulars of income. Thus, it cannot be a case of penalty under Section 271(1)(c) can be levied or confirmed. Penalty u/s. 271(1)(c) - disallowance of interest payment holding that when interest payment were not for business purposes, assessee furnished inaccurate particulars by claiming it to be business expenditure - Held that:- Once the assessee has submitted that it had surplus funds from where it had advanced the money to the sister's concerns, there cannot be any presumption that the same has been made out of borrowed funds only. At least in the penalty proceedings, with any adverse material on record to dispute the assessee's explanation, penalty for concealment cannot be levied or imposed. Thus, on this score also no penalty is warranted - the appeal filed by the department stands dismissed.
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