TMI Blog2019 (9) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... e, we are satisfied that the penalty u/s 271(1)(c) is not leviable in the case before us. Since the facts and circumstances in all the other cases before us are being similar, following the above, the penalty u/s 271(1)(c) is deleted in all the cases. - Decided in favour of assessee. - 230/H/19, 231/H/19, 232/H/19 - - - Dated:- 5-9-2019 - Smt. P. Madhavi Devi, Judicial Member And Shri S. Rifaur Rahman, Accountant Member For the Assessee : Shri K.C. Devdas For the Revenue : Shri K. Gopala Krishna ORDER PER S. RIFAUR RAHMAN, A.M.: These three appeals filed by different assessees are directed against the orders of CIT(A) -12, Hyderabad, all dated, 10/01/2019. As identical issue is involved in these appeals, the same were clubbed and heard together and therefore, disposed of these appeals by this consolidated order for the sake of convenience. 2. Brief facts as taken from ITA No. 230/Hyd/2019 in the case of Ram Prakash Nagori are, the assessee, an individual derives income from salary from M/s Sree Sai Roller Flour Mills (P) Ltd., house property and income from ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt whatsoever in the return of income u/s 153A on 12/04/2016 as section 153A treats a return of income filed u/s 153A as a return of income required to be filed u/s 139 and therefore, the Ld. CIT (A) erred in confirming the penalty u/s 271(1)(c) of the Act at ₹ 1,22,00,000/- . (4) Ld. CIT (A) failed to note that the exemption u/s 10(38) was surrendered on the basis of a discussion with the authorities that no penalty proceedings will be initiated / levied and therefore, the Ld. CIT (A) erred in confirming the levy of penalty u/s 271(1)(c) at ₹ 1,22,00,000/- . (5) The Ld. CIT (A) erred in confirming the levy of penalty u/s 271(1)(c) of ₹ 1,22,00,000/- when the appellant in the original return of income filed for the AY 2015-16 on 28/08/2015 admitted a total income of ₹ 66,47,293/- after claiming exemption of income u/s 10(38) of the Act at ₹ 3,51,94,419/- which was clearly mentioned in the Return of Income flied originally. (6) Ld. CIT(A) failed to note that the appellant had neither concealed the particulars of income nor furnished inaccurate particulars in submission of return of income either o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers are party) 6. The ld. DR, on the other hand, submitted that it is not voluntary disclosure, but, based on the facts that it is a penny-stock transaction and it came to light because of search proceedings. He submitted that the CIT(A) discussed this issue at length in her order and assessee has withdrawn 10(38) deduction in the revised return of income, which clearly indicates that the assessee has violated the provisions of income-tax. He submitted that the case relied upon by the assessee in the case of Pr. CIT Vs. Smt. Baisetty Ravathi (supra) is distinguishable on facts. He relied on the decision in the case of Sundaram Finance Ltd. Vs. ACIT, TC (Appeal) Nos. 876 877 of 2008, judgment dated 23/04/2018. Further, he submitted that assessee has violated both limbs of section 271(1)(c) of the Act. 7. Considered the rival submissions and perused the material on record. In the case of Smt. Amita Tulsyan and others (supra), the coordinate bench has held as under: 7. Having regard to the rival contentions and the material on record, we find that the assessee, at the time of filing of return itself, has declared the long term c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitting an incorrect claim in law for the expenditure on interest would amount to giving inaccurate particulars of such income . We do not think that such can be the interpretation of the concerned words. The words are plain and simple. In order to expose the assessee to the penalty unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars. In CIT v. Atul Mohan Bindal [2009] 9 SCC 589, where this Court was considering the same provision, the Court observed that the Assessing Officer has to be satisfied that a person has concealed the particulars of his income or furnished inaccurate particulars of such income. This Court referred to another decision of this Court in Union of India v. Dharamendra Textile Processors [2008] 13 SCC 369, as also, the decision in Union of India v. Rajasthan Spg. Wvg. Mills [2009] 13 SCC 448 and reiterated in para 13 that :- 13. It goes without saying that for applicability of section 271(1)( c), conditions stated therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanations indicated with the said section was for providing remedy for loss of revenue and such a penalty was a civil liability and, therefore, wilful concealment is not an essential ingredient for attracting civil liability as was the case in the matter of prosecution under section 276C of the Act. The basic reason why decision in Dilip N. Shroff's case (supra) was overruled by this Court in Dharamendra Textile Processors' case (supra), was that according to this Court the effect and difference between section 271(1)(c) and section 276C of the Act was lost sight of in case of Dilip N. Shroff (supra). However, it must be pointed out that in Dharamendra Textile Processors' case (supra), no fault was found with the reasoning in the decision in Dilip N. Shroff's case (supra), where the Court explained the meaning of the terms conceal and inaccurate . It was only the ultimate inference in Dilip N. Shroff's case (supra) to the effect that mens rea was an essential ingredient for the penalty under section 271(1)(c) that the decision in Dilip N. Shroff's case (supra) was overruled. 9. We are not concerned in the present case with the mens rea. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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