TaxTMI 
TaxTMI 
2018 (10) TMI 1439
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....mmissioner of Income-tax (Appeals)-XXV, New Delhi , affirming the penalty order dated 30.11.2012 passed u/s 271(1)(c) of the Income Tax Act, 1961 (for short 'the Act'), qua the assessment year 2009-10 on the grounds inter alia that :- "The Learned Commissioner of Income tax (Appeals) - XXV, New Delhi ["Ld. CIT(A)"] erred in law and facts by sustaining the penalty imposed on the appellant vide order dated 30-3- 2009 passed under section 271(1)(c) of the Income tax Act, 1961 ("the Act") for Assessment year 1996-97 without appreciating the facts that the penalty order is barred by limitation as per the proviso to Sec 275(1 )(A) of the Act. Hence, impugned order is void ab initio in the eyes of law and need to be struck down. 2. The Ld. CI....
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....sues. [CIT v. Jaswinder Singh Ahuja 351 ITR 262 (Del) ]. 6. There is no finding in the impugned order as to whether this imposition of penalty is with the prior approval of DIT-Range 2, International taxation, New Delhi. Section 274(2)(b) of the Act, provides that such approval is mandatory for passing any order for imposing penalty. As such approval does not appear to have been sought, hence the order passed by Ld. CIT(A) sustaining penalty is void ab initio and invalid in the eyes of law and hence should be quashed. 7. The Ld.CIT(A) is not justified in sustaining penalty u/s 274 read with 271 for concealment of income without assigning any reasons, without application of mind and purely on conjectures and surmises. 2. Briefly stat....
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....rough the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. 5. At the very outset, the Ld. AR for the assessee contended that issue as to disallowance of Rs. 4,88,61,772/- out of deduction claimed by the assessee u/s 36(i)(viia) and disallowance of Rs. 32,20,00,000/- on account of interest paid to the head office made by the AO and confirmed by Ld. CIT(A) as well as the Tribunal is still debatable as the appeal is pending before Hon'ble Delhi High Court. On the other hand, the Ld. DR for the revenue filed comprehensive submissions by relying upon decision rendered by Hon'ble Supreme Court and Hon'ble High Court of Delhi cited as : Southern Technologies (320 ITR....
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.... the case of ABN Amro Bank vs. CIT(A) reported in 97 ITD 89? (d) Whether the Ld. ITAT has erred in omitting to make the interest paid on foreign currency deposit was ........with the approval of the RBI and hence was exempt from tax in accordance with the provisions of section .....(15)(iv)(fa) of the Income Tax Act, 1961 and hence did not attract tax deduction at source provisions ?" 7. Perusal of the aforesaid substantial questions of law framed by Hon'ble High Court of Delhi in the appeal against the assessment order on the basis of which this penalty has been levied shows that it is still debatable if the disallowance of Rs. 4,88,61,772/- u/s 36(i)(viia) and disallowance of the interest payment made by the assessee to its head offi....
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....hat in order to be covered by it, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. The meaning of the word "particulars" used in section 271(1)(c) would embrace the detail of the claim made. Where no information given in the return is found to be incorrect or inaccurate, the assessee cannot be held guilty of furnishing inaccurate particulars. In order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By no stretch of imagination can making an incorrect claim tantamount to furnishing inaccurate particulars. There can be no dispute that everything would de....