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2009 (8) TMI 1154 - HC - Income TaxPenalty u/s 271(1)(c) - Addition of Short term capital gain under the head “Professional Development Expenses - Disallowance of expenses and under the head “Professional Development Expenses” and under the head Advertisement - Tribunal has set aside the penalty order stating that there was no concealment of income or furnishing of inaccurate particulars - HELD THAT:- Where the assessee has disclosed all material facts in regard to the claim made, the onus placed upon the assessee stood discharged. In the instant case, the assessee had disclosed all the particulars of income. AO disallowed the expenses claimed on the ground that they were not incurred for the business purpose of the assessee and that they have been claimed against exempted income. Thus, it cannot be held that the assessee has filed inaccurate particulars of income or had concealed its income. Thus, the penalty cannot be levied for this reason also. We also observe that the expenses claimed by the assessee have not been found by the AO as bogus or false. Thus, the genuineness of the expenses incurred by the assessee has not been doubted by the AO and, therefore, the penalty cannot be levied on the assessee still further, the assessee explained that it was due to genuine mistake that it omitted to show the capital gain on the sale of six cars and that as soon as it was pointed out, the same was accepted by the assessee. In this context, assessee, by referring to the order of Suresh Chand Mittal, [2001 (6) TMI 63 - SC ORDER] submitted that it has been held that where the department has not discharged its burden of proving concealment and has simply rested its conclusion on the act of voluntary surrender done by the assessee in good faith, the penalty could not be imposed. Hence, for the reasons given in the foregoing, we set aside the order of the CIT (A) and the Assessing Officer and delete the penalty - Decided in favour of assesee.
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