TMI Blog2017 (4) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... lead to levy of penalty under Section 271(1)(c). That our aforesaid view is fortified by the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Reliance Petroproducts (Ltd.) (2010 (3) TMI 80 - SUPREME COURT) held that mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. - Decided in favour of assessee - I.T.A. No.4690/Mum/2012 - - - Dated:- 12-4-2017 - SHRI D. KARUNAKARA RAO, AM AND SHRI RAVISH SOOD, JM For The Appellant : Shri V.K. Tulsian For The Respondent : Ms. Arju Garodia, D.R ORDER PER RAVISH SOOD, JM: The present appeal is directed against the order of the CIT(A)-25, Mumbai, dated 10.05.2012 confirming the penalty imposed by the A.O. under Section 271(1)(c) of the Income-tax Act, 1961 (for short Act ) in the hands of the assessee. The assessee assailing the order of the CIT(A) had carried the matter in appeal before us, therein raising the following grounds of appeal: - On the facts and in circumstances of the case, the Commissioner of Income Tax (Appeals)-25 has 1. Erred in confirming the penalty levied U/s. 271(1)(c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being aggrieved with the assessment therein carried the matter in appeal before the CIT(A), who vide his order dated 25.02.2010 therein held that the assessee had carried out genuine purchase/sale transaction of shares of M/s Talent Infoway Limited, and as such the profit arising therefrom was in the nature of LTCG in the hands of the assessee. The CIT(A) however observed that since the aforesaid transactions were off-market transactions on which no Security transaction tax (STT) was paid, therefore, the LTCG arising therefrom did not qualify for exemption under Section 10(38) and was liable to be charged to tax. 4. That the A.O. who in the meantime had proceeded with the penalty proceedings under Section 271(1)(c) in the hands of the assessee, referring to the observations recorded by the CIT(A) in the quantum appeal of the assessee, therein observed that the department had assailed the order of the said first appellate authority and had filed an appeal before the Tribunal which was pending as on date. The A.O. holding a conviction that the penalty proceedings may not get barred by limitation, thus did not keep them in abeyance, and in the backdrop of the fact that the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee, no penalty under Section 271(1)(c) was liable to be imposed. That on the other hand the ld. D.R. relied on the orders of the lower authorities and therein submitted that the A.O. had rightly imposed the penalty under Section 271(1)(c) in the hands of the assessee, which thereafter had been sustained by the CIT(A). The ld. D.R. in order to support his contention therein drew our attention to Page 2- Para 4.1 of the order of the CIT(A), and therein submitted that in the backdrop of the facts involved in the case of the brother of the assessee, viz. Shri Ravindra Kumar Toshniwal and the latters wife Smt. Radhika Devi Toshniwal, it was beyond comprehension that the assessee was oblivious of the fact as regards a non-payment of STT in respect of the shares of M/s Talent Infoway Limited. It was further submitted by the ld. D.R. that the assessee despite being aware that the aforesaid transactions being off-market transactions had not been subjected to STT by the broker and thus not eligible for claim of exemption under Section 10(38), had however intentionally raised a wrong claim for exemption while filing her return of income, and thus was clearly liable for levy of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and figures relatable to the purchase and sale of the shares of M/s Talent Infoway limited (supra) and duly worked out the LTCG emerging there from in her return of income, therefore it can safely be held that the assessee loosing sight of the fact that the shares of M/s Talent Infoways Limited being in the nature of off-market transactions had not been subjected to STT, thus inadvertently claimed the same as exempt under Section 10(38). We have given a thoughtful consideration to the facts of the case and are of the considered view that now when the assessee had made a complete disclosure of the purchase and sale of shares of M/s Talent Infoway Limited in her return of income, the genuineness and veracity of which set of transactions had been accepted by the CIT(A) and all adverse inferences arrived in the said context by the A.O. had been set aside and put to rest, therefore merely for the reason that the LTCG emerging on the sale of the aforesaid shares had been claimed by the assessee as exempt u/s 10(38), the same in itself would not tantamount to concealment or furnishing of inaccurate particulars of income by the assessee. We thus in the backdrop of the facts involved in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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