TMI Blog2012 (9) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... EMBER This appeal has been preferred by the Revenue against the order dated 10.10.2011 of the CIT(A)-XXX, New Delhi for AY 2008-09 by which the CIT(A) deleted the demand of penalty u/s 271(1)(c) of the Act. The grounds of appeal are as under:- 1. On the facts and in the circumstances of the case, the ld. CIT(A)-XXVIII, New Delhi erred in deleting the penalty u/s 271(1)(c) of the I.T.Act, 1961 of Rs.29,56,610 for concealment of income and furnishing of inaccurate particulars levied by the AO, by accepting only the reasonings provided by the assessee and without considering the detailed findings and the reasonings given by the AO in the penalty order. 2. Whether on the facts and in law, the ld. CIT(A) was justified in only following and accepting the decisions of the courts so quoted by the assessee without considering the corresponding cases put forth by the AO as a rationale for the conclusions drawn in the assessment order. 2. Briefly stated, the facts of the case are that the assessee filed income tax return for AY 2008-09 on 30.9.2008 declaring total income of Rs. 78,83,303 and her case was selected for scrutiny assessment under CASS (Computer Aided Scrutiny Selection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easoning provided by the assessee and further held that respectfully following the decisions of the court cited by the assessee, it can be safely said that the penalty proceedings u/s 271(1)(c ) of the Act in this particular case cannot be pressed into action and penalty cannot be imposed and sustained. The aggrieved revenue department filed this appeal against the above order. 5. We have heard and carefully considered the submissions of both the parties in the light of material available on record. 6. Ld. DR submitted that the assessee furnished inaccurate particulars in his return and claim of baseless deduction and exemption on wrong footings and the department had incriminating material with regard to business income which was wrongly shown as long term capital gain instead of short term capital gain with the intention to evade income tax. Therefore, the action of the AO levying penalty on the assessee was just and proper in the facts and circumstances of the case. Ld. DR further submitted that the CIT(A) deleted the penalty despite the fact that the assessee concealed the income by furnishing inaccurate particulars of the income without considering the detailed findings an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debating the issue of period of holding of the stock and the assessee closed the issue by paying the tax with a submission that the department should take the considered view by not imposing any penalties on her. But the tax authorities accepted the tax and also levied penalty on unjustified ground which was deleted by the ld. CIT(A). The AR concluded the submissions with a request that looking into the facts and circumstances of the case, specially the economic and social status of the assessee and her conduct before the tax authorities, the penalty was rightly deleted and there was no concealment of income by the assessee. Relying on the judgment of ITAT Delhi A Bench in the case of Smt. Raj Rani Mittal vs ITO reported as (2010) 36 SOT 4(Del) and another judgement of ITAT Delhi Bench in ITA No. 3416/D/2011 and 3417/D/2011 dated 25.6.2012 in the case of ACIT vs Jaswinder Singh Ahuja, he finally submitted that merely taking a claim which is not sustainable in law by itself will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot be considered as furnishing inaccurate particulars. 9. On careful considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under section 271(1)(c). A 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. Such a claim made in the return cannot amount to furnishing inaccurate particulars. 10. We finally observe that in the case in hand, evidently there is no furnishing of any inaccurate particulars and also, this is not the case of the revenue that the assessee has either concealed any fact or had submitted any wrong or incorrect fact in her return. Before the tax authorities, the only question involved in the controversy was that whether the income from sale of stock option is assessable as short term capital gain or as long term capital gain. 11. The assessee has chosen not to contest the issue and surrendered before the tax authorities with the submission that she is ready to pay tax on sale of stock proceed as short term capital gain as assessed by the AO to avoid litigation and to buy peace of mind with additional submission that the tax authorities should take a considered and kind view by not imposing any penalty. But the AO initiated penalty proceedings and imposed penalty which was de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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