TMI Blog2021 (7) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 (3) TMI 80 - SUPREME COURT] as held that by any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing of inaccurate particulars - Decided in favour of assessee. - ITA No.586/Bang/2020 - - - Dated:- 2-7-2021 - Shri Chandra Poojari, Accountant Member And Smt. Beena Pillai, Judicial Member For the Appellant : Shri R.E Balasubramanyam, C.A For the Respondent : Shri Kannan Narayanan, Addl. CIT (DR) ORDER PER BEENA PILLAI, JUDICIAL MEMBER: Present penalty appeal has been filed by assessee against order dated 29/06/2018 passed by the Ld.CIT(A)-3, Bangalore for assessment year 2013-14 on following revised grounds of appeal filed by assessee on 24/03/2021: 1. That the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be valid, no penalty is warranted when the returned income and assessed income are both the same and the penalty to be levied on the alleged amount of tax sought to be evaded as contemplated under explanation 4 to section 271 of the Act is also NIL. ₹ 1,76,46,858 4. Without prejudice to above grounds, the penalty so Same as above confirmed by the Ld CIT(A) is bad-in-law and deserves to be cancelled inasmuch as the approval for the same was granted by the Ld Joint Commissioner of Income Tax without affording an opportunity to the Assessee to present its case before him in violation of the principles of natural justice. The appellant prays for leave to add, delete, modify and/or adduce additional ground at any time before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, on 21/09/2016 notice under section 274 of the Act, was issued to assessee. During the penalty proceedings assessee filed various submissions and replies in support of nonlevy of penalty. Ld.AO after considering the replies held that, the amount paid by the students admitted to the assessee s educational institution was not towards corpus donation account, but was collected only by way of capitation fee and that such amount of capitation fee was not exempt in the hands of assessee. The Ld.AO relied on the decision of Hon ble Supreme Court in case of Mohini Jain vs State of Karnataka and Ors. reported in (1992) 3 SCC 666. The Ld.AO thus levied penalty by holding that assessee filed inaccurate particulars. 5. Aggrieved by the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Hon ble Supreme Court in case of CIT vs Rajasthan and Gujarati Charitable Foundation reported in 402 ITR 441, is in favour of assessee on the issue. 10. On the contrary, the Ld.Sr.DR relied on the observations of Ld.CIT(A) 11. We have perused submissions advanced by both sides in the light of records placed before us. 12. We note that the issue of depreciation is covered in favour of assessee and therefore no penalty can be levied on that issue. Moreover the disallowance made by the Ld. AO on this respect is on account of difference of opinion. 13. On the other issue of disallowance of alleged corpus donation, we note that assessee disclosed the entire amount in the balance sheet as corpus donation which was not accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnishing of inaccurate particulars. 14. Similarly, in the present scenario, the assessee cannot be penalized for making a claim which in itself may be unsustainable in law. Hon ble Supreme Court further held that: Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the revenue, that, by itself, would not attract the penalty under section 271(1) (c). If the contention of the revenue was accepted, then in case of every return where the claim made was not accepted by the Assessing Officer for any reason, the assessee would invite penalty under section 271(1)(c) 15. From the facts of this case it is clear that the assessee disclosed all the particulars of his income. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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