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2015 (12) TMI 286 - ITAT MUMBAIPenalty u/s 271(1)(c) - deceleration of additional income in reply to notice u/s 153A - Held that:- So far as, the first addition is concerned, the money belonged to partnership firm M/s Silver Arch Builders and Promoters. Before the settlement commission, applicants made prayer for capitalization of their income following application method, which was allowed by the ld. Settlement Commission. As decided in ACIT vs Haresh N Mehta [2013 (11) TMI 1582 - ITAT MUMBAI] assessee has explained the source of obtaining the alleged bogus loan, being the amount received from the firm, which has been offered by the firm to tax and subject to the proceedings before the Settlement Commission. Thus, it was held that double addition cannot be made of the amount which is already subjected to tax in the hands of the firm. Thus in the present case also penalty cannot survive So far as, the second addition is concerned there is no positive material on record imposing penalty and addition is based upon interpretation of facts. Therefore, at least, it is not a fit case for levying penalty, because, the assessee disclosed the material facts/details and even the ld. Commissioner of Income Tax (Appeals) affirmed the addition only to the extent of ₹ 9,92,800/- out of the addition of 28,60,000/-. That too is based upon appreciation of facts. It may or may not be a good case for sustaining part addition but not sustaining the penalty, because, for penalty either there should be concealment of income or furnishing of inaccurate particulars of such income. Even otherwise, if a claim is made which is not sustainable in law, penalty is not automatic, as was held by Hon’ble Apex Court in CIT vs Reliance Petro products Pvt. Ltd. [2010 (3) TMI 80 - SUPREME COURT ], thus, the penalty cannot survive. - Decided in favour of assessee
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