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2019 (12) TMI 366 - ITAT MUMBAIPenalty u/s 271(1)(c) - assessee claimed a sum under the head underwriting commission as non-taxable and gains on the transfer of debt securities as also considered as non-taxable - case was selected for scrutiny and the AO assessed the income considering all receipts as taxable and penalty proceeding u/s 271(c) was initiated. CIT(A) has decided the matter of controversy to the fact that the underwriting commission was taxable as ‘Fee for Technical Service’ @ 10% on gross basis under Article 12 of the DTAA and gains on transfer of debt securities was assessable as ‘Capital Gains’ and not ‘Business Income’ and the same is exempt under Article 13(6) of the DTAA. HELD THAT:- Return of income was filed on 30.09.2008. The assessee filed the true nature of income as underwriting commission in sum of ₹ 15,80,80,000/- which was not taxable and gains on the transfer of debt securities of ₹ 18,86,80,359/- was not taxable as business income but the same was taxable as capital gain. According to the return of income, one claim of the assessee was accepted by the CIT(A) and on account of other claim, the nature of income was changed as capital gain in comparison to the business income and accordingly taxed. According to Section 271(1)(C) of the Act, the assessee nowhere concealed any particulars of income nor furnishing the inaccurate particulars of income. Declining the claim of the assessee nowhere attract the penalty. The facts of the present case is quite similar to the facts of the case decided by Hon’ble Supreme Court in the case of CIT Vs. Reliance Petroproducts Pvt. Ltd. [2010 (3) TMI 80 - SUPREME COURT] - Decided in favour of assessee.
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