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2019 (3) TMI 380 - AT - Income TaxPenalty u/s.271(1)(c) - difference of opinion - all the requisite particulars were furnished - Disputed income offered in subsequent year - other two grounds also related to pre-ponment of income from AY 2008-09 to the current year i.e. AY 2007-08 - Disallowance of benefit of claim U/s.80IB(10)in subsequent year - ITAT subsequently allowed 80IA - HELD THAT:- Now the Revenue has accepted the deletion of penalty qua two of the additions and appealed to the ITAT qua one of the additions. No reason for this differentiation has been brought on record. The Revenue in grounds raised itself admits that the impugned amount was offered for taxation in next Assessment Year although with a claim of incorrect deduction u/s.80IB. In this regard, we note that as in the case with other two additions, this addition being business income on account of Manish Garden Project was also offered for taxation in next Assessment Year. Hence, no case of furnishing of inaccurate particulars is made out as in other two additions. The assessee and the CIT(A) are correct in this proposition that it is only a matter of opinion. The A.O. is of a different opinion. When all the facts are available, that cannot be termed as furnishing of inaccurate particulars of income leading to invoking the rigours of penalty u/s. 271(1)(c). As rightly noted by the CIT(A) the issue was only year of taxability and in this regard, the ld. CIT(A) has rightly relied upon the decision in the case of CIT vs. Excel Industries [2013 (10) TMI 324 - SUPREME COURT] as expounded that the Revenue should not be aggrieved if it was only a matter of difference in the year of taxability. It was held that the rate of tax remained the same in the present assessment year as well as in the subsequent assessment year. Therefore, it was held that the dispute raised by the Revenue was entirely academic or at best may have a minor tax effect. Therefore, it was held that there was no need for the revenue to continue with this litigation when it was quite clear that not only was it fruitless (on merits) but also that it may not have added anything much to the public coffers. Though the assessee has not challenged the addition, we note that when the additions itself is on weak footing, the deletion of levy of penalty qua that addition by the CIT(A) cannot be faulted. Just because the assessee has not appealed against the addition, the same cannot lead to a inference of contumacious conduct of the assessee. See COMMISSIONER OF INCOME-TAX VERSUS RELIANCE PETROPRODUCTS PVT. LTD. [2010 (3) TMI 80 - SUPREME COURT] - Decided in favour of assessee
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