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2016 (8) TMI 462 - ITAT PUNEPenalty u/s.271(1)(c) - assessee has maintained combined profit and loss account without bifurcating the income/loss of its share trading business and its normal share brokerage business - Held that:- From the various details furnished in the paper book we find the assessee has given full details of income from share trading activity and income from brokerage activity for all the years. The AO has allocated the expenses to the above income and therefore some element of estimation is definitely there while computing the income. Since the business of the assessee company is that of trading in shares, therefore, in view of the above decision of the Mumbai Bench of the Tribunal Fiduciary Shares & Stock P. Ltd. Versus ACIT, Circle 4 (2) , Mumbai [2016 (5) TMI 814 - ITAT MUMBAI] the assessee is out of the purview of Explanation to section 73. Although the quantum addition has been sustained by the Tribunal, however, it is the settled law that the penalty proceedings are independent proceedings and the assessee always can raise new plea during the penalty proceedings. The Hon’ble Supreme Court in the case of Reliance Petroproducts Pvt. Ltd. (2010 (3) TMI 80 - SUPREME COURT ) has held that a 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 furnishing inaccurate particulars. In view of the above discussion, we are of the considered opinion that this is not a fit case for levy of penalty. We therefore set aside the order of the CIT(A) and direct the AO to cancel the penalty levied u/s.271(1)(c) of the I.T. Act, 1961. The grounds raised by the assessee are accordingly allowed.
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