TMI Blog2012 (2) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... e which may call for levy of penalty u/s 271(1)(c) and accordingly the penalty stands deleted. See CIT vs. Reliance Petroproducts Pvt. Ltd. (2010 - TMI - 75701 - Supreme Court) – Decided in favor of assessee. - ITA No.312/Mum/2010 - - - Dated:- 4-1-2012 - SHRI R.S. SYAL, SHRI D.K.AGARWAL, JJ. Appellant by : Shri Arvind Sonde, Respondent by : Shri Pawan Ved. O R D E R PER D.K.AGARWAL (JM) This appeal preferred by the assessee is directed against the order dated 16.11.2009 passed by the ld. CIT (A) for the Assessment Year 2004-05. 2. Briefly stated facts of the case are that the assessee company is engaged in the business of manufacturing and sale of Polyester films. It fi led return declaring total income a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 271(1)(c) of the Act and hence it is a fit case for levy of penalty and accordingly, he imposed the penalty of Rs.2,19,76,595/- vide order dated 25.3.2009 passed u/s 271(1)(c). On appeal, the ld. CIT(A) while observing that since the Tribunal has set aside the issue for fresh adjudication in respect of disallowance u/s 14A, disallowance out of interest and disallowance of Sacrifice premium, therefore, the penalty on these disallowances is not sustainable and the AO is free to initiate the penalty u/s 271(1)(c) of the Act while passing the fresh order on these issues, confirmed the penalty on the issue of disallowance of Rs.45,53,400/- u/s 40A(2)(b) on the ground that the assessee failed to substantiate its claim with any evidence before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for this proposition, the reliance was also placed on the decision in CIT V/s Nalwa Sons Investments Ltd.(2010) 327 ITR 543 (Del). He further submits that in the subsequent assessment year i .e. 2005-06, the similar disallowance of the payment of commission to M/s GPIL was made and the ld. CIT(A) after considering the agency arrangement with M/s GPIL has restricted the disallowance to Rs.11,60,682/- and deleted the transfer pricing adjustment of Rs.49,51,850/- and in support he also placed on record a copy of the said order of the ld. CIT(A) appearing at pages 186 to 215 of the assessee s paper book. He further submits that since the payment of commission to M/s GPIL is pertaining to the international transaction which comes under the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the imposition of penalty imposed by the AO. He, therefore, submits that the order passed by the ld. CIT(A) be confirmed and the penalty be upheld. 7. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that the assessee has made complete disclosure of facts in its relevant tax audit reports in respect of payment of commission made to M/s GPIL supported by the agreement. However, the AO without pointing out any material to show that no such payment was made or the same was denied by the recipient, while invoking the provisions of section 40A(2)(b) of the Act allowed the payment of commission on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly covered by the provision, the penalty provision cannot be invoked. By no stretch of imagination can making an incorrect claim tantamount to furnishing inaccurate particulars. There can be no dispute that everything would depend upon the return fi led by the assessee, because that is the only document where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. To attract penalty, the details supplied in the return must not be accurate, not exact or correct, not according to the truth or erroneous. Where there is no finding that any details supplied by the assessee in its return are found to be incorrect or erroneous or false there is no question of inviting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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