TMI Blog2020 (10) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... levied. Thus, Ground No.1 and 3 raised in appeal by the Revenue are dismissed. - ITA No. 1660/PUN/2017 - - - Dated:- 8-10-2020 - Shri R.S. Syal, VP And Shri Partha Sarathi Chaudhury, JM For the Assessee : Shri H.P Mahajani For the Revenue : Shri Subhakanta Sahu ORDER PER PARTHA SARATHI CHAUDHURY, JM: This appeal preferred by the Revenue emanates from the order of the Ld. CIT(Appeals)-6, Pune dated 01.02.2017 for the assessment year 2009-10 as per the following grounds of appeal on record: 1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the penalty levied u/s.271(1)(c) of the I.T. Act in respect of addition made on account of prior period expenses when when CIT(A) himself upheld the action of the AO in respect of the quantum addition? 2. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) was justified in deleting the penalty levied u/s.271(1)(c) of the I.T. Act in respect of addition made on account of commission expenses when CIT(A) himself upheld the action of the AO in respect of the quantum addition? 3. Whether on the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer passed the penalty order u/s.271(1)(c) of the Act on 27.03.2015 levying penalty of ₹ 10,55,40,630/-. 3. During the First Appellate proceedings, the Ld. CIT(Appeals) deleted the penalty levied u/s.271(1)(c) of the Act by the Assessing Officer in respect of additions made on account of (i) Prior period expenses (ii) Commission expenses (iii) Foreign exchange loss and (iv) professional expenses against which the Revenue is in appeal before us. 4. At the very outset, the Ld. DR submitted that with regard to the quantum appeal preferred by the assessee before the Pune Bench of the Tribunal in ITA No.512/PUN/2014 and ITA No.717/PUN/2014 order dated 19.09.2019 for the assessment year 2009-10 has deleted the addition in respect of commission expenses and professional expenses. 5. We have perused the case records and heard the rival contentions. We have also considered the decision of the Pune Bench of the Tribunal in quantum appeal preferred by the assessee and at Page 6, Para 16 wherein addition on commission expenses were deleted and the ground was allowed in favour of the assessee by observing as follows: 16. Ground No.6 of the assessee s appeal is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtains to foreign exchange loss and in the quantum appeal preferred by the assessee (supra.), the Pune Bench of the Tribunal on this issue has held as follows: 19. The facts concerning this issue are that the assessee claimed deduction of net Foreign Exchange loss of ₹ 89.54 crore. The instant dispute relates to two items of loss, namely, ₹ 2.18 crore on account of exchange gain/loss on account of open forward contract and ₹ 8.88 crore, being, a provision against SABAH forward contract as the order was cancelled beyond the year ending. On being called upon to explain the reasons for claiming deduction in respect of these items, the assessee contended that loss of ₹ 2.18 crore was on account of MTM exercise and further loss of ₹ 8.88 crore was on account of ineffective hedge for its SABAH order and it was in the nature of provision against MTM loss with respect to forward contract of the said order which was cancelled. The AO took note of the Instruction No.03/2010 providing for not allowing deduction in respect of MTM loss. He further held that the loss of ₹ 8.88 crore was a contingent loss as on the closing date and hence not deductibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct i.e. concealment of income or furnishing inaccurate particulars of income , these elements have not been proved against the assessee. The Ld. DR could not place on record any evidences whereby the condition for imposing penalty u/s.271(1)(c) of the Act could be said to have been proved in the case of the assessee. We take guidance from the decision of the Hon‟ble Supreme Court of India in the case of CIT Vs. Reliance Petro Products (P) Ltd. (2010) 322 ITR 158 (SC) wherein the Hon‟ble Apex Court has held that a mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars. The relevant portion of the judgment reads as under: 9. We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Webster's Dictionary, the word inaccurate has been defined as:- not accurate, not exact or correct; not according to truth; erroneous; as an inaccurate statement, copy or trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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