TMI Blog2011 (7) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... of `3,75,000/- under the head service charges. He noticed that this amount was received as rent in respect of office premises let out at `75,000/- per month. Invoking the principles established by the Hon'ble Supreme Court in the case of CIT vs. Shambu Investment Pvt. Ltd. 267 ITR 143 the A.O. brought to tax the rental income received under the head house property which resulted in converting the loss return into a positive income return. The company did not prefer any appeal as the said property was subsequently sold and litigation would result in lot of disputes/ expenditure. The A.O., however, decided to levy penalty under section 271(1)(c) on the reason that assessee has filed inaccurate particulars of income and thereby concealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the next year and only the leased for a part of the year from November 2003. Therefore only five months rent was received during the year and for most part of the year the premises was occupied by the assessee for the purpose of business. Therefore the service charges received from the tenants were shown as service charge received in the P L Account. It was further submitted that the property was ultimately sold in the next year and since the issues is only of head of income relying of the principles laid down by the Hon'ble Bombay High Court in the case of CIT vs. Awaita Properties P. Ltd. ITA No. 731 of 2009 , it was submitted that there cannot be any penalty under section 271(1)(c) consequent to assessee s failure to offer the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the occupation of assessee as a business premises, the fact of which was not disputed. The A.O. also has not estimated the annual letting value, but simply taken the service charges received under the head house property without considering the deduction of interest, which the assessee seems to have been paid. There is no discussion about the service charges receivable on furniture fixtures which does not fall under the head house property. This indicates that the A.O. simply shifted the income offered under the head business to the head house property without examining the other facts and law. In these circumstances, it cannot be stated that assessee has furnished inaccurate particulars or made a malafide claim. Assessee may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. and the assessee should have offered the income under house property. It is not possible to apply the principles to every situation as made out by the CIT(A) while confirming the penalty in this case. There can be genuine difference of opinion in appreciating the principles of law but it does not mean that assessee deliberately tried to conceal the income. Under the facts of the present case there is no scope for considering that there is concealment of income. In the same way, there is no case for furnishing inaccurate particulars as all the details including the agreement were placed on record. Therefore, we have no hesitation in cancelling the penalty. 7. In the result, appeal of the assessee is allowed. Order pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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