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2015 (9) TMI 601 - ITAT DELHIPenalty u/s 271(1)(c) - disallowance of expenses written off u/s 35D - Held that:- Admittedly and undisputedly, the claim of preliminary expenses was allowed by the AO in five equal instalments starting from AY 2009-10 which also shows that 1/5th part of the claim of the assessee has been allowed by the AO during the year under consideration and remaining part has also been allowed by the AO in four equal instalments in the subsequent assessment years. Now, under above noted facts and circumstances, it is vivid that the claim of the assessee was not allowed in the first year viz. AY 2009-10 and the same was allowed in five AYs starting from the assessment year under consideration. Hence, in this situation, we of the considered view that the case of the assessee is squarely covered in favour of the assessee by the judgement of Hon’ble Supreme Court in the case of CIT vs Reliance Petroproducts [2010 (3) TMI 80 - SUPREME COURT] and judgement CIT vs Brahmputra Consortium Ltd. [2011 (8) TMI 8 - DELHI HIGH COURT ] wherein dismissing the respective appeals of the revenue, it was held that the AO did not contradict the plea of the assessee that excess claim was an inadvertent error and the excess claim was not advantageous to the assessee, therefore, deletion of penalty was held as justified. It is clear that the 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 and such claim made in the return cannot amount to furnishing of inaccurate particulars. - Decided in favour of assessee.
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