TMI Blog2019 (3) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... nicipal Board to the village where the impugned land was situated was 8.2 Kms. It was also noted by the Tribunal that there were various certificates wherein different distances had been mentioned. After considering the matter, the ITAT came to the conclusion that there was no intention on the part of the assessee to furnish inaccurate particulars of income. - Decided in favour of assessee. - ITA No.2575/Del/2015 - - - Dated:- 9-1-2019 - Shri G.D. Agrawal, Hon ble Vice President And Shri Sudhanshu Srivastava, Judicial Member For the Assessee : Shri K. Sampath, Adv., Shri V. Rajkumar, Adv. For the Revenue : Shri G. Johnson, Sr. DR ORDER PER SUDHANSHU SRIVASTAVA, J.M. This appeal has been preferred by the assessee against the order of the Ld. CIT (Appeals)-Rohtak and pertains to assessment year 2007-08 wherein, vide the impugned order, the Ld. Commissioner of Income Tax (Appeals) has confirmed the imposition of penalty amounting to ₹ 93,97,840/- imposed u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter called 'the Act'). 2.0 Brief facts of the case are that the return of income was filed declaring an income of ₹ 31,74,010/-. Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2007 i.e. the due date of filing the return of income. The claim of exemption of the remaining investment in land purchase of ₹ 1,07,21,900/- was disallowed for the reason that the said land was purchased subsequent to the due date of filing of return of income and further the assessee also did not deposit the balance amount in Bank under the capital gain account scheme. The exemption of ₹ 10,00,000/- claimed u/s 54F(1) was also disallowed on the ground that the reconstruction had been carried out on plot before one year from the date of transfer of the original asset. 2.2 The assessee preferred an appeal against the impugned order which was upheld by the Ld. Commissioner of Income Tax (Appeals). The assessee s appeal before the ITAT was also dismissed vide order dated 10.4.2017 in ITA No. 3477/Del/2012. 2.3 Meanwhile, the Assessing Officer imposed penalty of ₹ 93,97,840/- u/s 271(1)(c) of the Act for furnishing inaccurate particulars of income. This penalty was confirmed by the Ld. Commissioner of Income Tax (Appeals) vide impugned order dated 24th April, 2017. The assessee is now before the ITAT against the said penalty. 3.0 The Ld. AR drew our attent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d laid down the position of law by holding that the Assessing Officer is not bound to levy penalty automatically simply because the quantum addition has been sustained. Also in case of CIT v. Khoday Eswara (83 ITR 369) (SC), incidentally reported in same ITR Volume, it is held that penalty cannot be levied solely on basis of reasons given in original order of assessment. The Hon ble Supreme Court has recently reiterated the law in case of Dilip N. Shroff v. Jt. CIT [2007] 291 ITR 519 by holding in Para 62 that finding in assessment proceedings cannot automatically be adopted in penalty proceedings and the authorities have to consider the matter afresh from different angle. The statute requires a satisfaction on the part of the Assessing Officer. He is required to arrive at a satisfaction so as to show that there is primary evidence to establish that the assessee had concealed the amount or furnished inaccurate particulars and this onus is to be discharged by the Department. While considering whether the assessee has been able to discharge his burden the Assessing Officer should not begin with the presumption that he is guilty. Since the burden of proof in penalty proceedings var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the decision of the Hon ble Supreme Court in the case of CIT v. Reliance Petroproducts (P.) Ltd. [2010] 322 ITR 158/189 Taxman 322, wherein the court while interpreting the provisions of section 271(1)(c) of the Act, has held that a glance at the said provision would suggest that in order to be covered by it, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate of his income. In the facts of that case, the court found that it was not a case of concealment of the particulars of the income, nor was it the case of the revenue either. However, the counsel for the revenue suggested that by making an incorrect claim for the expenditure on interest, the assessee had furnished inaccurate particulars of income. The court observed that it had to only see as to whether in that case, as a matter of fact, the assessee had given inaccurate particulars. The court noted that as per Law Lexicon, the meaning of the word particular is a detail or details (in the plural sense); the details of a claim, or the separate items of an account. Therefore, the word particular used in section 271(1)(c) would embrace the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted that by making incorrect claim for the expenditure on interest, the assessee has furnished inaccurate particulars of income. As per Law Lexicon, the meaning of the word particular is a detail or details (in plural sense); the details of a claim, or the separate items of an account. Therefore, the word particulars used in the section 271 (1) (c) would embrace the meaning of the details of the claim made. It is an admitted position in the present case that no information given in the return was found to be incorrect or inaccurate. It is not as if any statement made or any detail supplied was found to be factually incorrect. Hence, at least, prima facie, the assessee cannot be held guilty of furnishing inaccurate particulars. The learned counsel argued that submitting an incorrect claim in law for the expenditure on interest would amount to giving inaccurate particulars of such income. We do not think that such can be the interpretation of the concerned words. The words are plain and simple. In order to expose the assessee to the penalty unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By any stretch of imagination, making a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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