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TMI Blog2019 (9) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions have been heard and record perused. Facts in brief are that the assessee is engaged in the business of electronic distribution of mobile and DTH recharge and provision of travel booking services to various retail outlets spread across India. The assessee company has filed its return of income on 29.09.2011 declaring total income/loss of (-)Rs. 6,18,02,588/-. The case of the assessee was taken up for scrutiny and accordingly, notice u/s.143(2) dated 03.08.2012 was issued and duly served on the assessee as per proviso thereto. In response to notice u/s 143(3) issued by the Ld. Assessing Officer, the assessee filed required details. The assessment was completed on 16.12.2013 at a loss of Rs. 6,10,66,903/- vide order dated 16.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO in the appellate proceeding before the CIT(A). The assessee also accepted the small penalty of Rs. 1,50,323/- levied by the AO under bonafide belief that the matter will get closed. However, the Ld.CIT(A) vide order dt.26.12.2016 dismissed the quantum appeal and vide order dt.29.12.2016 dismissed the penalty appeal filed by the assessee. Thereafter, the Principle Commissioner of Income Tax - 7, Mumbai had issued a show cause notice dt.01.02.2018 to the assessee requiring him to show cause as to why prosecution proceedings u/s 276C( 1) of the Act shall not be launched in respect of additions/disallowances made by the AO in assessment order passed u/s 143(3) of the Act. On receipt of impugned show cause for prosecution, the assessee co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not aware of the above TDS of Rs. 3,14,325/- deducted by the parties and has also not received the TDS certificate in respect of above TDS. 8. In this regard, we observe that non accounting of TDS of Rs. 3,14,325/- was an inadvertent bonafide mistake due to non availability of TDS certificate and proper information at the relevant time. The same is proved from the fact that the assessee has claimed TDS credit of Rs. 6,91,912/- only in its return of income and did not claim the TDS of Rs. 3,14,325/- deducted and paid to government account by various parties. Here it is worthwhile to note that the assessee has filed its return of income declaring huge loss of Rs. 6,18,02,588/-. Even if the above amount of TDS of Rs. 3,14,325/- would have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r returns: a) Price Waterhouse Coopers Pvt. Ltd Vs. CIT [348 ITR 306](Supreme Court) b) CIT Vs. Somany Evergree Knits Ltd [352 ITR 592](Bombay) c) CIT Vs. Bennett Coleman & Co. Ltd. [87 DTR 368](Bombay) 10. In view of our above facts and circumstances and considering judicial pronouncement relied upon we are of the view that the non accounting/booking of TDS of Rs. 3, 14,325/- as income in assessee's books of accounts is due to inadvertent mistake and no penalty u/s 271(1)(c) is attracted in the case of the assessee. 11. With respect to disallowance of interest expense of Rs. 67,157/- u/s 36(1 )(iii) of the Act, we observe that the assessee has given interest free loan of Rs. 13,80,000/- to its group concern M/s. Myzus Infotech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any interest expense for Capital Work in Progress. Thus, there was no concealment of income or furnishing of inaccurate particulars of such interest so as to attract penalty u/s.271(1)(c). In this regard, we observe that the Hon'ble Supreme Court of India in its decision in the case of CIT Vs. Reliance Petroproducts Pvt. Ltd 322 ITR 158 has clearly laid down a proposition of law that by no stretch of imagination making an incorrect claim in law, would amount to concealment of income or furnishing of incorrect particulars of income. Thus, levy of penalty was not justified. 14. In view of the above discussion, we hold that it is not a fit case for levy of penalty, accordingly, AO is directed to delete the penalty so imposed u/s.271(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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