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2010 (4) TMI 1148

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..... The assessee has shown long term capital gain of ₹ 23,93,305/- on sale of shares of M/s Excel Paper Tube Pvt ltd and claimed exemption u/s 54F of ₹ 22,08,275/- for investment made being share in residential flat purchased jointly with the assessee s husband. The AO disallowed the claim of exemption u/s 54F on the ground that the assessee was already owning 1/4th shares and enjoyment was available to the assessee in the same premises in which the assessee has acquired further share of other co-owners. By getting her larger share in the said property there is no addition to higher right to stay or additional enjoyment in the said property except for accounting purposes. Thus the AO held that the assessee already owning a resident .....

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..... in favour of the assessee. He referred the said order at page 18 of the paper book and submitted that when on the identical facts this issue was decided in favour of the assessee in the case of the assessee s sister then there is no reason to dis-believe bonafide belief of the assessee for making the claim u/s 54F. He has relied upon thee decision of the Hon ble Supreme Court in the case of CIT V/s Reliance Petroproducts Pvt.Ltd reported in 322 ITR 158(SC) and contended that for in correct claim in law cannot tantamount to furnish inaccurate particulars of income. 6. On the other hand, the learned DR has submitted that the assessee claimed for exemption u/s 54F despite the assessee was already owning a residential house. Therefore, .....

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..... available to the assessee because the assessee was already having a share in the residential premises. In view of the decision of this Tribunal in assessee s sister case In ITA No.6257/Mum/2002 dated 24.2.2006, it cannot be ruled out that the assessee was under the bonafide belief about the entitlement of the claim u/s 54F. Therefore, the explanation of the assessee in our view is not only bonafide but also substantiated by the order of this Tribunal in assessee s sister case (supra). We have also gone through the decision of the Apex court in the case of CIT V/s Reliance Petroproducts Pvt.Ltd (supra) in which the Hon ble Supreme Court held in paragraphs 11 to 14 as under : 11. We have already seen the meaning of the word part .....

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..... y (or in an exaggerated amount ) claimed and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars of one s income as well as furnishing of inaccurate particulars of income. We do not agree, as the assessee had furnished all the details of its expenditure as well as income in is return, which details, in themselves we not found to be inaccurate nor could be viewed as the concealment of income on its parts. It was up to the authorities to accept its claim in the return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under section 271(1)(c). .....

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