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2016 (4) TMI 1039 - ITAT DELHI

2016 (4) TMI 1039 - ITAT DELHI - TMI - Penalty under section 271(1)(c) - Held that:- In the case under consideration although both the lower authorities have alleged that the assessee had furnished inaccurate particulars with a mala fide intention, the same has not been substantiated convincingly by the department so as to attract penalty. The only finding against the assessee is that she could not produce the relevant vouchers after a lapse of ten years. Even the Income Tax Act requires mainten .....

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at the penalty imposed be deleted. - Decided in favour of assessee - ITA No. 3479/Del/2014 - Dated:- 16-3-2016 - SHRI J.S. REDDY, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER For The Appellant : None present For The Respondent : Shri P. Damkanunja, Sr. DR ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER This appeal filed by the assessee is directed against the order passed by the Ld. Commissioner of Income Tax(Appeals)- XXII, New Delhi wherein by the impugned order dated 27/07 .....

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section 143 (3) of the Income Tax Act, 1961 was completed at an income of ₹ 7,06,930/- after adding ₹ 5,33,223/-on account of capital gains. During the year, the assessee had sold a residential house for ₹ 34,38,000/- and had invested ₹ 18,75,000/- in the acquisition of new residential property. Due to indexation, the capital gains amounted only to ₹ 12,22,667/- and the claim under section 54 was limited to this amount only. It is seen from the records that origina .....

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The penalty was imposed vide order dated 28/06/2012 with the following observations:- Assessment in this case was completed under section 143 (3) wide order dated 24th of December 2011 at an income of ₹ 7,06,930/- against returned income of ₹ 1,73,710/-. The brief facts of the case leading to penalty under section 271(1)(c). The case was selected for a scrutiny through CASS with remarks of sale of property of ₹ 39,31,000/-. Assessee has declared Nil Long Term Capital Gain in hi .....

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would not have been selected under scrutiny, the assessee would have cheated the Government. Hence, it was detrimental to the revenue and I impose the penalty of ₹ 1,08,548/- under section 271(1)(c), which is equal to 100% of tax or to be evaded. 3. Aggrieved, the assessee preferred an appeal before the First Appellate Authority which was dismissed with the following remarks:- 8.25 In the present case also, it is seen that the assessee has made the bogus claim of a scrap sale for ₹ 8 .....

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ITAT, Mumbai in the case of Champalal K Vardhan (supra), as the claim itself is mala fide, no one can save the assessee from facing the music. 8.26 In view of the above discussion it is held that penalty under section 271 (1) (c) is imposable upon the assessee, as the assessee concealed the particulars of his income and furnished inaccurate particulars of such income. Accordingly, the penalty of ₹ 1,08,548/- imposed upon the assessee for assessment year 2009- 10 vide order dated 28/06/2012 .....

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cords that the assessee surrendered the amount claimed as cost of improvement because of her inability to produce the relevant bills and vouchers after a lapse of almost 10 years. However, in penalty proceedings, mala fide was attributed to the assessee's claim in this regard and the penalty was imposed. We are of the view that penalty cannot be levied on presumptions only. Both the AO as well as the Commissioner have not demonstrated as to how mala fide could be attributed to a claim which, .....

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that the assessee had concealed the amount or furnished inaccurate particulars and this onus is to be discharged by the Department. 49. While considering as to whether the assessee has been able to discharge his burden, the assessing officer should not begin with the presumption that he is guilty. 50. Once the primary burden of proof is discharged, the secondary burden of proof would shift on the assessee because the proceeding under section 271 (1) (c) is of penal nature in the sense that its c .....

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sment proceeding, a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted, though a finding in the assessment proceeding constitutes good evidence in the penalty proceedings. In the penalty proceedings, thus, the authorities must consider the matter afresh as the question has to be considered from a different angle. 7. In the case of CIT vs Reliance Petroproducts Private Limited 322 ITR 158 (SC), the Hon'ble Apex Court has laid down the law a .....

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lty of furnishing inaccurate particulars. In order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By no stretch of imagination can making an incorrect claim tantamount to furnishing inaccurate particulars. There can be no dispute that everything would depend upon the return filed by the assessee, because that is the only document where the assessee can furnish the particulars of his income. When such particulars a .....

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