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M/s Kamani Oil Industriesl Pvt. Ltd. Versus Dy. Commissioner of Income Tax-6 (2) , Mumbai

Penalty u/s 271(1)(c ) - claim u/s 35D - Held that:- As find from the record that the assessee has made claim u/s 35D of the Act which was reduced during the course of assessment proceedings when the assessee filed revised calculation u/s 35D and thus the difference of ₹ 5,35,279/- was added to the income of the assessee. We find that the claim of the assessee was also certified by the Chartered Accountant of the assessee and find merit in the submissions of the ld. AR that it was claimed .....

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the order of the Ld. CIT(A)-12, Mumbai dt.30.1.2015 pertaining to A.Y. 2009-10. 2. The only issue raised by the assessee in the grounds of appeal is against the confirmation of penalty of ₹ 1,65,401/- by the ld.CIT(A) as imposed by the AO under section 271(1)(c ) of the Income Tax act, 1961. 3. Facts of the case in brief are that the assessee filed its return of income for the assessment year under consideration on 30.9.2009 declaring total income of ₹ 14,56,08,016/-. The assessment .....

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ulation and submitted that the claim was made wrong and excess to the tune of ₹ 5,35,279/- as correct claim came to ₹ 14,19,607/- whereas the claim as made was u/s 35D of the Act was ₹ 19,54,886/-. The facts is discussed by the AO in para 5 at page 2 of the assessment order. The AO issued show cause notice to the assessee as to why the penalty should not be imposed in respect of excess claim of deduction u/s 35D of the Act which was replied by the assessee vide letter dated 1.2 .....

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nished inaccurate particulars of income by filing wrong claim u/s 35D and levied penalty equal to 100% of the tax sought to be evaded amounting to ₹ 165,401/- vide order dated 228.1.2014 passed under section 271(1)( c) of the Act. Aggrieved by the order of AO, the assessee preferred an appeal before the ld.CIT(A), who also dismissed the appeal of the assessee by holding that the assessee has furnished inaccurate particulars of income and uphold the action of the AO by relying on the order .....

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facts as the assessee has suo mottu filed revised calculation of claim u/s 35D which was incorporated by the AO in the assessment order as stated hereinabove and difference of ₹ 5,35,279/- was added to the income of the assessee. The ld. Counsel submitted that the said mistake and wrong claim had occurred due to inadvertent mistake in calculation of expenses which was also certified by the Chartered Accountant of the assessee. The ld. AR submitted that the assessee under bonafide belief c .....

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ounsel of the assessee relied upon the number of decisions namely: a) Price Waterhouse Coopes P Ltd V/s CIT (348 ITR 306(SC); b) CIT V/s Reliance Petroproduct Pvt.Ltd -322 ITR 158 (SC); c) CIT V/s Aditya Birla Nova Limited (82 CCH 206 (Bom) etc; 6. The ld. DR vehemently opposed the submissions of the ld. AR and heavily relied on the orders of authorities below. The ld. DR submitted that wrong claim was made with the intention to suppress the profit of the assessee and therefore liable for penalt .....

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of assessment proceedings when the assessee filed revised calculation u/s 35D and thus the difference of ₹ 5,35,279/- was added to the income of the assessee. We find that the claim of the assessee was also certified by the Chartered Accountant of the assessee and find merit in the submissions of the ld. AR that it was claimed under bonafide belief. The case of the assessee find strong support from number of decisions as placed before the Bench during the course hearing. In the case of Pr .....

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Report. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears that all happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and exper .....

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ed to or attempted to either conceal is income or furnish inaccurate particulars. Under these circumstance, the appeal was allowed and he order passed by the Calcutta High Court was set aside In the case of Reliance Petroproduct (supra), the Hon ble Supreme Court held as under : A glance at this provision would suggest that in order to be covered, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his .....

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used in the Section 271(1)(c) would embrace the meaning of the details of the claim made. It is an admitted position in the present case that no information given in the Return was found to be incorrect or inaccurate. It is not as if any statement made or any detail supplied was found to be factually incorrect. Hence, at least, prima facie, the assessee cannot be held guilty of furnishing inaccurate particulars.. The words are plain and simple. In order to expose the assessee to the penalty unl .....

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s of his income. -CIT V/s Atul Mohan Bindal (2009) 225 CTR (SC) 248: (2009) 28 DTR (SC) 1 : (2009) 9SCC 589 followed: Reading the words inaccurate and particulars in conjunction, they must mean the details supplied in the Return, which are not accurate, not exact or correct, not according to truth or erroneous. In this case, there is no finding that any details supplied by the assessee in its Return were found to be incorrect or erroneous or false. Such not being the case, there would be no ques .....

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