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2014 (1) TMI 1868

horities assessed the assessee under a different head. In so far as furnishing of primary material, there was neither any dispute, nor an adverse allegation. The only dispute is that the revenue authorities treated the income not from rent but from house property, this by itself cannot form the basis for the levy of penalty, as held by the above mentioned decisions and other catena of decisions on the issue of cancellation of penalty, when the revenue authorities change the head of income. Thus penalty is not exigible. We, therefore, set aside the order of the CIT(A) and direct the AO to cancel the penalty. - Decided in favour of assessee. - ITA No. 4147/Mum/2012 - 15-1-2014 - SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICI .....

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this was a case of concealment of particulars of income nor the case of furnishing of inaccurate particulars of income and nor is a case where the AO has inferred a finding, which would attract penal proceedings. The AR also submitted that penalty cannot be levied on a change of head of income or where the claim of the assessee is not accepted by the revenue authority. The AR cited the following decisions from the various fora: 1. Reliance Petroproducts vs CIT 322 ITR 158 (SC): Mere making of a claim which is not sustainable in law does not attract penalty under Section 271(1)(c). 2. CIT vs Indersons Leather P. Ltd. 328 ITR 167 (Hon ble P&H High Court): There cannot be any penalty when the AO treats rental receipt under a different head .....

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come, we find ourselves in agreement with the ld. CIT(A) that it was not a fit case to impose penalty u/s 271(1)(c). We therefore uphold the order of the ld. CIT(A) canceling the penalty imposed by the AO u/s 271(1)(c). 5. M/s Crown Tradelink Pvt Ltd vs Asst. CIT (ITA No. 2768/Ahd/2012] 2768/Ahd/2012]: The addition was made merely because of a change in the head of income. In the absence of inaccuracy in the books of accounts or concealment of facts, penalty u/s 271(1)(c) cannot be levied. 6. Dy. CIT vs JMD Advisors Pvt. Ltd. (08.02.2008 - ITAT Delhi): A mere change of head of income by the AO in the assessment cannot be construed as concealment as envisaged in Sec. 271(1)(c) so as to attract the penal provisions contained therein. 7. Sabar .....

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Mfg. Co. 133 ITR 334: 9. The AR, therefore, pleaded that no penalty is exigible on the given set of facts and placed reliance on the above decisions. 10. The DR, relied on the orders of the revenue authorities. 11. We have heard the arguments and have perused the facts and the orders of the revenue authorities and the case laws cited before us. At the outset, it is a matter of fact that the assessee was claiming income under one head and the revenue authorities assessed the assessee under a different head. In so far as furnishing of primary material, there was neither any dispute, nor an adverse allegation. The only dispute is that the revenue authorities treated the income not from rent but from house property, this by itself cannot form t .....

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