TMI Blog2016 (4) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... een taxed on the amount remaining unsubstantiated. However, drawing an inference as to the malafide intention of the assessee in this regard is a mere presumption. Hence, we are unable to concur with the observations of the Ld. Commissioner of Income Tax (Appeals) and set aside his order and direct that 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. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the AO imposed a penalty of ₹ 1,08,548/- under section 271 (1) (c) of the Act. 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 his returned income. The assessee could not produce the details of cost of construction claimed during the year 1998-99 for ₹ 7,15,000/- neither as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic. 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 is hereby upheld. 4. None appeared for the assessee, however, written submissions have been filed which are available on record. 5. The learned AR relied on the orders of the AO and the CIT (A). 6. We have gone through the case records and have given the facts due consideration. It is seen that the penalty has been levied and confirmed on account of assessee's fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 consequences are intended to be an effective deterrent which will put a stop to practices which the Parliament considers to be against public interest and, therefore, it was for the Department to establish that the assessee shall be guilty of the particulars of income. 51. The order imposing penalty is quasi-criminal in nature and, thus, burden lies on the Department to establish that the assessee had concealed his income. Since burden of proof in penalty proceedings varies from that in the assessment proceeding, a finding in an assessment proceeding that a particular receipt is income canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s supplied in the return must not be accurate, not exact or correct, not according to the truth or erroneous. Where there is no finding 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 the 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. 8. 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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