TMI Blog2016 (5) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... s the short term capital gain. Moreover, the cost of acquisition of the land was already in the notice of the tax authorities, the assessee being a tax payee. So, making incorrect claim does not amount to furnishing of inaccurate particulars. Moreover, in the penalty order, it is nowhere recorded that the details submitted by the assessee in its return are found to be incorrect or erroneous or false and in these circumstances, penalty u/s 271(1)(c) of the Act is not sustainable. - Decided in favour of assessee. - ITA No. 800/Del./2015 - - - Dated:- 29-4-2016 - Shri N. K. Saini, Accountant Member And Shri Kuldip Singh, Judicial Member For the Petitioner : Shri Sanjay Malik, Advocate For the Respondent : Shri K.K. Jaiswal, DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,49,870/- has been made on the ground that the assessee company has accepted that it has taken cost of acquisition at ₹ 3,49,88,474/- instead of ₹ 3,33,38,604/- and as such addition of ₹ 16,49,870/- is made to the short term capital gain on sale of land, on account of excess cost of acquisition claim of the assessee. The AO on the basis of addition of ₹ 16,49,870/- sough to initiate penalty proceedings u/s 271(1)(c) of the Income-tax Act, 1961 (hereinafter the Act ). 3. Penalty proceedings were initiated and despite issuance of a notice, assessee has not preferred to contest the same and consequently, the AO passed the penalty order as under :- 7. In the case of the assessee company, penalty notice was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome in respect of which assessee has furnished inaccurate particulars of income for which tax has been sought to be evaded 16,49,870/- Income Tax, surcharge Edu. Cess thereon 5,60,790/- Amount of Tax Sought to be Evaded 5,60,790/- Minimum Penalty (100% of x 5,60,790/-) 5,60,790/- Maximum Penalty (300% of x 5,60,790/-) 16,82,370/- Considering the facts circumstances of the case, I hereby levy a penalty of ₹ 5,60,790/- on the assessee. 4. The assessee carried the matter before the ld. CIT (A) who has dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(c) of the Act goes to prove that to impose penalty upon the assessee under the relevant provisions of the Act, two conditions are required to be fulfilled one: that the assessee must have furnished inaccurate particulars of income and two: the assessee must have concealed particulars of income from the tax authorities. 10. The issue in controversy has been dealt with by the Hon ble Supreme Court in the case of Reliance Petroproducts Pvt. Ltd. (supra). The operative part of which is reproduced for ready reference as under :- A glance at the provisions of section 271(1)(c) of the I. T. Act, 1961 suggests that in order to be covered by it, there has to be concealment of the particulars of the income of the assessee. Secondly, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered view that in this case, the assessee has neither furnished inaccurate particulars of income nor he has concealed the particulars of income from tax authorities, because the assessee has merely enhanced the cost of acquisition of the land for the purpose of computation of income stated to be due to inadvertent mistake, which he has subsequently revised and paid the tax on the remaining amount. In our view, this is a case of mere clerical mistake which was to be examined by the AO at the very outset to take into account the actual cost of the acquisition of the land to assess the short term capital gain. 12. Moreover, the cost of acquisition of the land was already in the notice of the tax authorities, the assessee being a tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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