TMI Blog2017 (8) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay High Court in the case of Fortune Hotels and Estates Pvt. Ltd. (2014 (10) TMI 783 - BOMBAY HIGH COURT), we delete the penalty and allow the appeal of the assessee. - ITA No.907/Mum/2014 - - - Dated:- 9-8-2017 - SRI MAHAVIR SINGH, JM AND SRI N.K. PRADHAN, AM For The Assessee : Shri Nitesh Joshi, AR For The Revenue : Shri V Justin, DR ORDER PER MAHAVIR SINGH, JM: This appeal by the assessee is arising out of the order of CIT(A)-29, Mumbai, in appeal No. CIT(A)-29/Rg.17/31/12-13 dated 29-11-2013. The assessment was framed by ITO ward-17(1)(3), Mumbai for the A.Y. 2009- 10 vide order dated 30-11-2011 under section 143(3) of the Income Tax Act, 1961 (hereinafter the Act ). The penalty was levied by ITO ward- 17(1)(3), Mumbai vide order dated 28-05-2012 under section 271(1)(c) of the Act. 2. The only issue in this appeal of assessee is against the order of CIT(A) confirming the levy of penalty under section 271(1)(c) of the Act on the basis of not disclosing the capital gain as computed by the AO on the basis of value adopted by stamp duty valuation authority for registering the sale deed. 3. Briefly stated facts are that the AO during the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the penalty proceedings under section 271(1)(c) of the Act and levied the penalty for concealment of income on the differential value of the property because by that time the DVO s report was not received and hence, he levied the penalty on the difference amount of ₹ 29,86,753/-. The AO while levying the penalty on both the charges i.e. for concealing the particulars of income as well as for furnishing of inaccurate particulars of income by observing as under: - I am further of the opinion that the assessee case squarely fails within the ambit of explanation 1 to section 271(1)(c) and the assessee case is a fit case to levy penalty where the assessee has knowingly and deliberately tried to mislead department and has attempted to evade taxes by making false claims in view of the my opinion this is a fit case for levying penalty u/s 271(l)(c) for furnishing inaccurate particulars of income In view of the above, I hold that, in terms of the explanation section 271(1) of the IT Act the assessee has concealed the particulars off The amount involved is ₹ 30,01,753/- (Rs 15,000 + ₹ 29,86,753). in view of the facts circumstances I shall levy a penalty at 100% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore false claim of expenditure would amount to concealing the particulars of income or deliberate in furnishing inaccurate particulars of such income. This issue is dealt by Hon ble Bombay High Court in the case of Samson Perinchery ( supra) wherein Hon ble Supreme Court relying on the decision of the Karnataka High Court in the case of CIT vs. Manjunath Cotton Ginning Factory [2013] 359 ITR 565 (Karnataka) observed as under: - The impugned order of the Tribunal deleted the penalty imposed upon the Respondent Assessee. This by holding that the initiation of penalty under Section 271(1)(c) of the Act by Assessing Officer was for furnishing inaccurate particulars of income while the order imposing penalty is for concealment of income. The impugned order holds that the concealment of income and furnishing inaccurate particulars of income carry different connotations. Therefore, the Assessing Officer should be clear as to which of the two limbs under which penalty is imposable, has been contravened or indicate that both have been contravened while initiating penalty proceedings. It cannot be that the initiation would be only on one limb i.e. for furnishing inaccurate part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken as a case of furnishing inaccurate particulars of income inasmuch as there was a registered sale deed and there was consideration mentioned therein. That ground was raised and therefore, the document was forwarded to the Valuer and for determination of the value, by itself would not mean that the Assessee had furnished inaccurate particulars of income or has concealed the income. In these peculiar circumstances the imposition of penalty was not justified, is the conclusion drawn. The larger question posed for our consideration by Mr.Vimal Gupta really does not arise in the peculiar facts of the case. We leave that question and contentions based thereon open for being canvassed in an appropriate case. The Tribunal's order even if containing any reference to some deeming provision will not preclude or prevent the Revenue from raising such contentions. With this clarification and finding that the Tribunal's order does not raise any substantial question of law that we proceed to dismiss the Appeal. It is, accordingly, dismissed. No costs. 10. Further, the learned Counsel for the assessee also relied on the decision of Hon ble Calcutta High Court it he case of CIT v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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