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TMI Blog2015 (12) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... ard together and are being disposed of by way of this common order for the sake of convenience. 2. First we take up the appeal in quantum proceedings i.e. I.T.A. No.728/Lkw/2014. In this appeal, the Revenue has raised the following grounds: "1. The Commissioner of Income-tax (Appeals), Lucknow has erred in law and on facts of the case in allowing the deduction of Rs. 37.38 lacs on the basis of application filed before him by the assessee, as against Rs. 27.43 lacs allowed by the Assessing Officer u/s 35(2AB) of the Income-tax Act, 1961 against the claim of Rs. 49.05 lacs, ignoring the fact that during the course of assessment proceedings, the assessee did not file any such Form- 3CL received from Ministry of Science & Technology, Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable because of low tax effect. 5. In the result, the appeal of the Revenue stands dismissed. 6. Now we take up the appeal in course of proceedings u/s 271 (1) (c) of the Act. In this appeal, the Revenue has raised the following grounds: "1. The Commissioner of Income-tax (Appeals), Lucknow has erred in law and on facts of the case in deleting the penalty of Rs. 10,02,053/- imposed u/s 271(1)(c) of the Income-tax Act, ignoring the facts that the assessee has claimed the deduction u/s 35 (2AB) in excess and that while calculating the deduction u/s 35(2AB) it did not exclude the amounts of revenue expenditure which were not eligible for the claim of deduction u/s 35(2AB) of the Income-tax Act." 7. Learned D.R. of the Revenue su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. cannot be said justified because the A.O. has even not considered the quantum of revenue expenses allowed by Secretary, DSIR of Rs. 37.38 lacs vide letter dated 06.02.2013. It is worthwhile to mention here that the said letter was received well before the passing the present penalty order u/s 271(1)(c) of I.T. Act and the letter was submitted before A.O. by appellant during penalty proceedings but the A.O. has over-looked the quantum of revenue expenditure approval i.e. 37.38 lacs. As mentioned above the appellant has furnished each detail/ information in respect of claim of Revenue Expenditure u/s 35(2AB) before A.O. either at the time of filing of return of income or assessment/penalty proceedings. The appellant has bonafide beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(c) not attracted, merely making of the claim, which is not sustainable in law by itself will not amount furnishing inaccurate particulars regarding the income of assessee." (v) CIT Vs. Asim Kumar Agarwal (2005) 275 ITR 48 (Jharkhand) Held: That no penalty unless there is a deliberate attempt on part of assessee. Mere omission on part of assessee does not amount to concealment and if no supporting evidence are available to proof deliberate attempt, no penalty lies. (vi) CIT Vs. Nalwa Sons Investment Ltd. Held: that penalty u/s 271(1)(c) cannot be levied as concealment in the form of disallowances of expenses did not lead to tax evasion." 9. Looking into these facts, the penalty levied by A.O. Rs. 10,02,053/- is considered unjustif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted by revenue, penalty u/s 271(1)(c) not attracted, for merely making of the claim, which is not sustainable in law by itself will not amount furnishing inaccurate particulars of income. In the present case also, the claim of the assessee was not accepted by the Assessing Officer for the sole reason that the assessee could not get the approval from DSIR till completion of scrutiny assessment proceedings and therefore, in the facts of the present case, this judgment of Hon'ble Apex Court is squarely applicable and therefore, respectfully following this judgment of Hon'ble Supreme Court, we decline to interfere in the order of learned CIT(A). 9. In the result, the appeal of the Revenue stands dismissed. 10. In the combined result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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