TMI Blog2012 (5) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in deleting the addition of Rs. 13,29,194/- on account of imposition of penalty u/s 271(1)(c) of IT Act. 2. The only issue for consideration relates to deleting the penalty of Rs. 13,29,194/- imposed u/s 271(1)(c) of the Act. Facts of the case stated in brief are that for the Assessment Year 2006-07 the assessee filed return of income declaring total income of Rs. 47,60,438/- under normal provisions of Act and Rs. 1,01,49,499/- u/s 115JB of the Act. The assessment was completed on 22.08.2008 u/s 143(3) assessing the income of Rs. 47,79,638/- under normal provisions of law and at Rs. 1,01,68,698 under MAT provisions. In the return of income the assessee has shown loss on sale of flat to the extent of Rs. 69,22,537/- which was claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in the case of K.P. Madhusudanan vs. CIT, 251 ITR 99 (SC), held that penalty under sec. 271(1)(c ) was imposable. 4. On appeal, it was submitted by the assessee that even on revised calculation of long term capital loss the book profit was the same. Only long term capital loss as per the Act came down from Rs. 69,22,547/- to Rs. 29,73,658/-. There was no change in the taxable income of the assessee. The tax liability of the assessee u/s 115JB remained the same. Therefore, the department did not stand to loose anything whatsoever and there was no loss of revenue. The assessee had carried forward long term capital loss of Rs. 3,90,68,922/- which was verifiable from tax audit report and income-tax return. With the revised calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revised computation was towards reduction in carried forward loss from Rs. 69,22,547/- to Rs. 29,73,658/- which was beneficial to the revenue. There was no time to file revised return and therefore, the assessee filed revised computation. Again under MAT computation, the assessee had paid tax. The returned MAT income was Rs. 1,01,49,498/- u/s 115JB while assessed MAT income was Rs. 1,01,68,698/-. Thus, there as a difference of Rs. 19,200/-. Hence, at the best the Assessing Officer should have charged penalty u/s 271(1)(c ) on the difference of Rs. 19,200/- at minimum of 100% and not on reduction of carried forward loss of Rs. 39,48,889/- as computed by the AO. The learned CIT(A) also observed that if some technical or clerical mistake is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income under normal provisions at lower income as compared to MAT provisions. The assessment was finally made u/s 115JB of the Act. The AO had initiated penalty proceedings u/s 271(1)(c) under normal provisions of the Act in respect of long term capital loss claimed by the assessee. Even in respect of long term capital gains, the assessee entered into an agreement for purchase of property for a sum of Rs. 31,53,430/- as on 1.04.1981. However, there was litigation which was ultimately settled by the Hon ble High Court on 15.07.1993. Thus there was difference of opinion between the assessee and assessing officer with regard to date of acquisition. We may like to add here that this difference of opinion was only academic in nature a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording 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 the penalty under section 271(1)(c ). 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. As per the decision of Hon ble Supreme Court in the case of Reliance Petroproducts Ltd. (supra), where there is no finding that any details supplied by the assessee in its return were found to be incorrect or erroneous or false, there would not be any question o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
