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2015 (6) TMI 1266 - AT - Income TaxLevy of penalty u/s 271(1)(c) - exemption u/s 10(38) for the said LTCG on account of sale of shares denied - HELD THAT:- In the case of levy of penalty, it should be proved on the file that the particulars furnished by the assessee were inaccurate particulars of income or that there was concealment of income. Every case of confirmation of disallowance cannot be regarded as a case of furnishing of inaccurate particulars of income or concealment of income. Even it cannot be said that this case of the assessee was a case of no evidence at all. The assessee has submitted evidence in the shape of contract note, purchase bills, sale bills, bank statement, D-mat account statement reflecting the sale of shares etc. The evidence produced on the file by the assessee has not been proved wrong or false. As decided in the case of “CIT vs. Upendra V. Mithani” [2009 (8) TMI 1159 - BOMBAY HIGH COURT] has observed in the matter of levy of penalty u/s 271(1)(c) that if the assessee gives an explanation which is unproved but not disproved i.e. it is not accepted but circumstances do not lead to the reasonable and positive inference that the assessee’s case is false, then no penalty can be imposed in such cases. When the facts of the case in hand the levy of penalty cannot be held to be justified in this case. The same is accordingly ordered to be deleted. Appeal of the assessee allowed.
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