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TMI Blog2022 (4) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... trar stamps (i.e. Rs. 1,91,50,085/-) however later the matter was referred under section 50C(2) to departmental valuer who assessed the same at Rs. 1,71,72,400/- thereby resulting into an addition of Rs. 23,23,310/-. Thus the above addition is on account of deeming provision (i.e. section 50C). The variation in the sales value versus value as adopted by departmental valuer as per Section 50C shows that there is no withholding or misrepresentation of facts by the assessee before the AO. The concealment is always with reference to the facts and it cannot be imposed with reference to claim or disallowance on difference of opinion. The addition has been only based upon the estimates and values obtained from the departmental valuer in preference to the value as per sales deed. Thus no facts, evidence or transaction has even been concealed. Thus it is neither technical error nor intentional but is only a "bonafide belief" & does not tantamount to be furnishing of inaccurate particulars. 4. The AO arrived the findings that the assessed at Rs. 26,68,640/- including long term capital gain of Rs. 23,23,310/- on which separate rate of tax would be charges as per provisions of Act. Charged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commits any "BONAFIDE MISTAKE" than "DELIBERATE MISTAKE" & the bonafide mistake as committed is also based on expert advice, it cannot be alleged as "CONCEALMENT" or "INACCURATE PARTICULARS" & no penalty can be levied u/sec. 271(1)(c). Refer CIT V/s Skyline Auto Products (P) Ltd. [2004] 271 ITR 335 [2005] 142 Taxman 558 (MP). When a technical or venial breach of the provisions of the Act is there & where the breach flows from a "BONAFIDE BELIEF" than no penalty u/sec. 271(1)(c) can be levied. Refer Hindustan Steel Ltd. V/s State of Orissa (1972) 83 ITR 26 (SC). Before levying penalty u/sec. 271(1)(c) the AO has to prove that assessee has consciously made concealment or inaccurate particulars of his income. In the given circumstances only the technical opinion has changed resulting into change in quantum of tax method of tax but nowhere is could be proved that "CONCEALMENT" taken place & thus no penalty to be levy. Refer K.C. Builders V/s ACIT (2004) 265 ITR 562/135 Taxman 461 (SC). In recent decided cases of Hon'ble Supreme Court it has been held that when no information given in return found to be incorrect & making incorrect claim or disallowing any claim does not am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being deemed value and even additions on such deemed value accepted by assessee it cannot be said furnishing of inaccurate particular for levy of penalty of concealment u/sec. 271(1)(c). Further the assessee has not suppressed the accounting value of the sales however only the additions made on technical ground of section 50C wherein for capital gain purpose the value of Dy. Registrar is adopted for taxation. Also refer case of KISHAN CHAND JAINANI, JAIPUR V/s ITO, JAIPUR for A.Y. 2006-07 in Appeal no. 338/JP/2010 as decided by ITAT, Jaipur Bench-A, Jaipur wherein held that ignorance of the provisions of section 50C of the Act is a bona fide belief on the part of assessee in not taking the valuation as per stamp duty officer for computing the amount of capital gains as per section 50C. Similar in appeal no. ITAT JPR Bench ITA 1074/JP/10 in case of late Shri Pratap Chand Jain on the similar ground / issue has been decided favourably to assessee. Considering these facts the Ld. CIT(A) Ajmer in appeal No. 488/15-16 A.Y. 2010-11 dated 24.12.2018 in case of Pradeep Brahmwar has deleted the penalty. Further under the similar circumstances the Hon'ble Gujrat High Court in case of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transcript." 11. We have already seen the meaning of the word "particulars" in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the * [2007] 291 ITR 519 (SC). ** [2008] 306 ITR 277 (SC). assessee in its return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under section 271(1)(c) of the Act. 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 partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the turnover were found incorporated in the appellant's account books. Where certain items which are not included in the turnover are disclosed in the dealer's own account books and the assessing authorities includes these items in the dealer's turnover disallowing the exemption, penalty cannot be imposed. The penalty levied stands set aside." 14. The situation in the present case is still better as no fault has been found with the particulars submitted by the assessee in its return. 15. The Tribunal, as well as, the Commissioner of Income-tax (Appeals) and the High Court have correctly reached this conclusion and, therefore, the appeal filed by the Revenue has no merits and is dismissed." Looking to the totality of the facts and circumstances of the case, we direct to delete the penalty sustained by the ld. CIT(A)." 11. Therefore, we are of the opinion that said claim made under the provisions of the Act is disallowed by the AO would not attract the penalty provisions of Section 271(1)(c) of the Act. The Hon'ble Supreme Court in case of CIT vs. Reliance Petroproducts Pvt. Ltd. 322 ITR 158 has held that where the information given by the assessee is not found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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