TMI Blog2015 (10) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee : Shri Sunil Ganoo For The Revenue by : Shri B.C. Malakar ORDER PER VIKAS AWASTHY, JM : The appeal of the assessee is directed against the order of Commissioner of Income Tax (Appeals)-II, Nashik dated 15-01-2013 for the assessment year 2008-09, confirming the levy of penalty u/s. 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. The brief facts of the case are : The assessee is an individual and is a distributor of LPG and sale of other related accessories like LPG stove, rubber tubes, lighters etc. The assessee is also having income from other sources viz: salary income from Malegaon Gas Agency, interest on FDR and saving accounts, agricultural income and capital gains. The assessee filed his return of income for the assessment year 2008-09 on 31-07-2008 declaring total income of ₹ 2,37,180/- and agricultural income of ₹ 1,10,000/-. Thereafter, the assessee filed revised return of income on 10-12-2008 declaring income of Rs.(-)4,36,289/- and agricultural income ₹ 8,05,024/-. In the return of income the assessee had also disclosed income from Long/Short Term Capital Gain/Loss, arising from sale of sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Jain Irrigation Systems Ltd. was a bonafide mistake and there was no deliberate attempt on the part of assessee to furnish inaccurate particulars or suppress in his income. The assessee had furnished the details of all the transactions along with the return of income. The mistake was in computation of capital gains and as such it is not a case of furnishing inaccurate particulars. The ld. AR of the assessee prayed for setting aside the impugned order and deleting the penalty. In support of the submissions, reliance was placed on the following case laws: i. CIT Vs. Miles Cable Industries, 261 ITR 675 (Guj); ii. Udayan Mukherjee Vs. CIT, 291 ITR 318 (Cal); iii. CIT Vs. Umashankar Saraf, 139 ITR 842 (Bom); iv. CIT Vs. Reliance Petroproducts Pvt. Ltd., 322 ITR 158 (SC); and v. Price Waterhouse Coopers Pvt. Ltd. Vs. CIT and Another; 348 ITR 306 (SC). 4. On the other hand, Shri B.C. Malakar representing the Department submitted that in the original return filed by the assessee on 31-07-2008, the assessee treated the gain arising from sale of shares from M/s. Jain Irrigation Systems Ltd. as Long Term Capital Gain. Again, at the time of filing revised return of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong particulars and making a wrong calculation on the basis of the particulars furnished. If the particulars are furnished then there cannot be any question of concealment. A mistaken calculation is distinct from concealment. A mistaken indexation would not amount to furnishing of wrong particulars nor concealment within the scope of section 271(1)(c). 7. The Hon'ble Supreme Court of India in the case of CIT Vs. Reliance Petroproducts Pvt. Ltd. (supra) has held that where there is no findings that any details supplied by the assessee in its return are found to be incorrect or erroneous or false there is no question of inviting the penalty 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. The relevant extract of the judgment is as under: 8. A glance at this provision would suggest that in order to be covered, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s income. When such particulars are found to be inaccurate, the liability would arise. In Dilip N. Shroff Vs. Joint CIT [2007) 6 SCC 329, this court explained the terms concealment of income and furnishing inaccurate particulars . The court went on to hold therein that in order to attract the penalty under section 271(1)(c), mens rea was necessary, as according to the court, the word inaccurate signified a deliberate act or omission on behalf of the assessee. It went on to hold that clause (iii) of section 271(1)(c) provided for a discretionary jurisdiction upon the assessing authority, inasmuch as the amount of penalty could not be less than the amount of tax sought to be evaded by reason of such concealment of particulars of income, but it may not exceed three times thereof. It was pointed out that the term inaccurate particulars was not defined anywhere in the Act and, therefore, it was held that furnishing of an assessment of the value of the property may not by itself be furnishing inaccurate particulars. It was further held that the Assessing Officer must be found to have failed to prove that his explanation is not only not bona fide but all the facts relating to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
