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2009 (3) TMI 638 - AT - Income TaxPenalty levied u/s 271(1)(c) - For concealment of income - business of hire purchase, leasing, finance and investment in shares and securities - claimed loss from trading shares - Whether penalty u/s 271(1)(c) r/w the Explanation 1 of section 271(1) is applicable? - AO treated the said loss under Explanation to section 73 and treated the said loss as deemed speculation loss and levied penalty u/s 271(1)(c) - CIT(A) cancelled the penalty, holding that the assessee has disclosed all the material facts and it was only under a deeming provisions that the loss was to be treated as speculative loss. HELD THAT:- CIT(A) has cancelled the penalty after considering the facts on merit of the case. He has not cancelled the penalty on the ground of ‘wilful’ concealment or on the ground of ‘mens rea’. Thus, the law laid down by the Apex Court in the case of Dharamendra Textiles Processors [2007 (7) TMI 307 - SUPREME COURT] does not help to the revenue. As said above that the CIT (A) has decided the case on facts and we also decide this case considering the totality of the case with reference to above discussions, we find that it is simple case of fighting in between duty and rights which automatic do not amount to a case of concealing particulars or furnishing inaccurate particulars of income, neither there is finding of the Assessing Officer that explanation furnished by the assessee is found to be false. In our considered view it is not a fit case for levy of penalty u/s 271(1)(c). Therefore, we uphold the order of CIT(A) on this count.
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