TMI Blog2019 (5) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee had furnished any inaccurate particulars while bifurcating the value between land and buildings while computing short term capital gains. With regard to the provisions of section 271(1)(c ) of the Act pertaining to penalty, RELIANCE PETROPRODUCTS PVT. LTD. [ 2010 (3) TMI 80 - SUPREME COURT] has authoritatively laid down that making of a claim by the assessee which is not sustainable will not tantamount to furnishing inaccurate particulars. Penalty deleted - decided in favour of assessee. - ITA No.4080/Del/2016 - - - Dated:- 24-5-2019 - Shri G.D. Agrawal, Vice President And Shri Sudhanshu Srivastava, Judicial Member For the Assessee : Shri Salil Kapoor, Adv., Shri Shivesh Pandiya, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal gain was reduced from ₹ 23,92,871/- to ₹ 4,73,881/-. Subsequently, on the assessee approaching the ITAT, the ITAT deleted the disallowance u/s 40(a)(ia) of the Act and also upheld the addition pertaining to short term capital gains as restricted by the Ld. CIT (A). Thus, the only addition which finally survived was of ₹ 4,73,881/- which pertained to addition on account of short term capital gain. Subsequently, penalty of ₹ 8,95,256/- was imposed u/s 271(1)(c) of the Act on the total addition of ₹ 26,33,881/- which included the disallowance of ₹ 21,60,000/- pertaining to disallowance u/s 40(a)(ia) of the Act. This penalty of ₹ 8,95,256/- was upheld by the Ld. Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. That the A.O. and CIT(A) have erred in law and on facts in not appreciating that no penalty can be levied on the amount of addition upheld on the calculation of short term gain as the stand of the assessee has been accepted in principle and the difference arose only due to difference in valuation . 8. That the penalty order u/s 271(1)(c) is against the well established norms and jurisprudence of penalty under the IT Act and against various decisions of ITAT, High Court and Supreme Court. 9. That the appellant had neither concealed income nor had filed inaccurate particulars of income and the CIT (A) has grossly erred in upholding the penalty order. 10. That on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty. It was submitted that the notice issued was vague, illegal and without jurisdiction. Hence, the subsequent penalty proceedings and the penalty order passed were also illegal and bad in law. Reliance was placed on the judgments of the Hon ble Karnataka High Court in the cases of CIT vs. Manjunatha Cotton and Ginning Factory reported in 359 ITR 565 and on CIT vs. SSA Emerald Meadows. 3.1 The Ld. AR further submitted that there was no concealment of income or furnishing of inaccurate particulars of income. It was submitted that this is a simple case where the assessee had apportioned the value of the land and building sold by it on the basis of a valuation report taken from the architect. This valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty order, penalty u/s 271(1)(c) has been specifically initiated for furnishing inaccurate particulars. It was submitted that thus, there was application of mind by the Assessing officer and hence mere non-striking of correct limb in the notice cannot be taken as fatal error. Rather, it is a curable defect and protection u/s 292 BB is also available to the Revenue. The Ld. Sr. DR also submitted that this objection was never raised by the assessee during penalty proceedings or before the Ld. CIT (A) and that the assessee is raising such objection now, after almost 6 years of assessment order dated 28.12.2010, wherein such penalty was initiated and the initial penalty notice dated 28.12.2010 was issued. It was submitted that, thus, on f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee which is not sustainable will not tantamount to furnishing inaccurate particulars. In CIT vs. Reliance Petroproducts Pvt. Ltd. 322 ITR 158 (SC), the Hon ble Apex Court has held as follows: A glance at this provision would suggest that in order to be covered, there has to be concealment of particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. The present is not a case of concealment of income. That is not the case of the Revenue either. However, the Ld. Counsel for the revenue suggested that by making incorrect claim for the expenditure on interest, the assessee has furnished inaccurate particulars of income. As per Law Lexicon, the meani ..... X X X X Extracts X X X X X X X X Extracts X X X X
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