TMI Blog2017 (10) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... not allowable, the petitioner had filed a revised computation statement and accordingly, the assessment was completed. Thus, the withdrawal of the rebate claimed was voluntary and in any event, the same cannot be brought within the expression concealment of particulars or furnishing inaccurate particulars as in the case of M/s.MAK Data (2013 (11) TMI 14 - SUPREME COURT). A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the Return cannot amount to the inaccurate particulars. See CIT., Ahmedabad Vs. Reliance Petroproducts Private Ltd. [2010 (3) TMI 80 - SUPREME COURT] - Decided in favour of assessee. - W.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty situated in India and hence, the gains arising on the same is taxable in India. 2.2.It was further stated that there is no provision as per Article 13 of DTAA to claim rebate for the Taxes paid in other country and the petitioner was directed to show cause as to why the rebate claimed of ₹ 1,02,90,323/- cannot be disallowed. 2.3.In response to the said show cause notice, the petitioner sent a reply on 28.07.2016, whereby she submitted a revised Income Computation Statement for the Assessment Year 2014-15 after disallowing the rebate claimed and the petitioner enclosed the letter dated 08.07.2016 along with revised computation and requested the respondent to give effect to the revised tax payable and issue the refund at the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded on 20.01.2017. The petitioner, through her authorised representative, appeared before the respondent on 06.02.2017 and also attended the personal hearing. The respondent has passed the order dated 22.02.2017 and levied penalty of ₹ 23,31,787/- under Section 271(1)(c) of the Act. This order is impugned in this writ petition. 3.Before examining the correctness of the impugned order, it may be necessary for the Court to see under what circumstances the penalties are imposable under Section 271 of the Act. The said provision falls under Chapter XXI of the Act and Section 271 deals with failure to furnish returns, comply with notices, concealment of income, etc. 4.Sub Section 1 of Section 271 of the Act states that if the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, the assessee mentioned that she had inadvertently claimed a rebate of 50% on total tax payable and submitted a revised computation withdrawing the rebate claimed. 7.Thus, in the facts and circumstances, there is no concealment of income nor submitting of inaccurate information, as all the relevant details were furnished by the assessee. 8.Further, there has been no misrepresentation of the facts to the Assessing Officer and that the inadvertent claim of rebate on the Tax Liability which has admittedly been paid in the other country shows the intention of the assessee in not to furnish inaccurate particulars or conceal her income. 9.Though the above was the reply given by the petitioner, the respondent in the impugned order wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was a case where penalty proceedings have to be initiated and all the more, reasons are required to justify an order of imposing penalty. These basic parameters had not been fulfilled in the impugned order. 10.The learned Senior Counsel for the Revenue by referring to the decision of the Hon'ble Supreme Court in MAK Data (P.) Ltd. V. Commissioner of Income-tax-II reported in [2013 ] 38 taxmann.com 448 (SC) submitted that the impugned order is an appealable order and the petitioner without exhausting appellate remedy could not have filed this writ petition before this Court. Reference was also made to the decision of the Division Bench in the case of Lanxess India (P.) Ltd. V. Assistant Commissioner of Income Tax reported in [2015] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving a notice submitted a response stating that the claim for rebate is not allowable, the petitioner had filed a revised computation statement and accordingly, the assessment was completed. Thus, the withdrawal of the rebate claimed was voluntary and in any event, the same cannot be brought within the expression concealment of particulars or furnishing inaccurate particulars as in the case of M/s.MAK Data (supra). Therefore, the decision of the Hon'ble Supreme Court is clearly distinguishable on facts. 13.In CIT., Ahmedabad Vs. Reliance Petroproducts Private Ltd., in Civil Appeal No.2463 of 2010 reported in 322 ITR 158 (SC), the question which arose for consideration was whether the assessee was liable to pay penalty under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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