Smt. Sravanthi Koduru, New Delhi V. ACIT, New Delhi

CO 87/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7448 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 02-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset; Question of law; Wrong claim
• Section: 271(1)(c); 54F; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI G.D.AGRAWAL, HONBLE VICE PRES IDENT & SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.-6796/DEL/2015 ( ASSESSMENT YEAR: 2009-10) ACIT CIRCLE-52(1), ROOM NO. 1405, 14 TH FLOOR, E-2 BLOCK, DR. S.P.MUKHARJEE CIVIC CENTRE NEW DELHI VS . SRAVANTHI KODURU F-45, BHAGAT SINGH MARKET NEW DELHI PAN : AMLPK3875E CROSS OBJECTION 87/DEL/2016 (ITA NO.-6796/DEL/2015) ( ASSESSMENT YEAR: 2009-10) SRAVANTHI KODURU F-45, BHAGAT SINGH MARKET NEW DELHI PAN : AMLPK3875E VS . ACIT CIRCLE-52(1), ROOM NO. 1405, 14 TH FLOOR, E-2 BLOCK, DR. S.P.MUKHARJEE CIVIC CENTRE NEW DELHI APPELLANT RESPONDENT ASSESSEE BY: SH. SHIV MAHAJAN, CA, MS. JYOT I SAXENA, CA REVENUE BY: SHRI SRIDHAR DORA, SR.DR DATE OF HEARING 26.11.2018 DATE OF PRONOUNCEMENT 16.01.2019 ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 2 ORDER PER BENCH: THE APPEAL IS PREFERRED BY THE DEPARTMENT AGAINST ORDER DATED 27.10.2015 PASSED BY THE LD. CIT (APPEALS)-18 , NEW DELHI FOR ASSESSMENT YEAR 2009-10 WHEREIN, VIDE THE IMPUG NED ORDER, THE LD. CIT (APPEALS) HAS DELETED PENALTY OF RS. 46 ,15,157/- IMPOSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED THE ACT). THE C.O. IS PREFERRED BY THE A SSESSEE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED DECLARING AN INCOME OF RS. 4,23,26,403/- AND THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS. 9,20,68,829/- AFT ER MAKING A DISALLOWANCE OF RS. 4,97,42,426/- AGAINST CLAIM MAD E BY THE ASSESSEE U/S 54F OF THE ACT. THIS CLAIM U/S 54F PER TAINED TO EXPENDITURE ON THE HOUSE CONSTRUCTED BY THE ASSESSE E. AGAINST THE DISALLOWANCE, THE ASSESSEE FILED AN APPEAL BEFORE T HE LD. CIT (APPEALS) WHO ALLOWED PARTIAL RELIEF TO THE ASSESSE E BY ALLOWING AN AMOUNT OF RS. 3 CRORES OUT OF TOTAL EXPENDITURE INC URRED BY THE ASSESSEE TOWARDS THE CONSTRUCTION OF THE RESIDENTIA L HOUSE AND CONFIRMED AN ADDITION OF RS. 2,03,66,977/-. THIS AM OUNT PERTAINED TO BASIC INTERIOR WORK AND WAS DISALLOWED ON THE GROUND ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 3 THAT THE IMPUGNED AMOUNT WAS NOT SPENT WITHIN THREE YEARS FROM THE TRANSFER OF THE CAPITAL ASSET. THEREAFTER, PENA LTY U/S 271(1)(C) OF THE ACT WAS IMPOSED FOR FURNISHING INACCURATE PA RTICULARS OF INCOME THEREBY CONCEALING TWO PARTICULARS OF INCOME . THE PENALTY LEVIED WAS RS. 46,15,157/-. THE ASSESSEES APPEAL A GAINST THE IMPOSITION OF PENALTY WAS ALLOWED BY THE LD. CIT (A PPEALS) BY HOLDING THAT THIS WAS NOT A FIT CASE FOR LEVY OF PE NALTY. NOW THE DEPARTMENT IS IN APPEAL BEFORE THE ITAT AGAINST THE DELETION OF THE PENALTY BY THE LD. CIT (APPEALS). 3. THE LD. SR. DEPARTMENTAL REPRESENTATIVE SUBMITTE D THAT SINCE THE LD. CIT (APPEALS) HAD PARTIALLY CONFIRMED THE DISALLOWANCE MADE BY THE AO, THEREFORE, THE LD. CIT (APPEALS) WAS PATENTLY WRONG IN DELETING THE PENALTY BECAUSE PRIMA FACIE THE PROVISIONS OF SECTION 271(1)(C) WERE ATTRACTED IN T HIS CASE. RELIANCE WAS PLACED ON THE JUDGMENT OF HONBLE DELH I HIGH COURT IN THE CASE OF CIT VS. ZOOM COMMUNICATIONS PVT. LTD ., 327 ITR 51 (DELHI) TO SUPPORT THE CASE OF THE REVENUE. IT WAS SUBMITTED THAT HAD THE RETURN OF THE ASSESSEE NOT PICKED UP FOR SC RUTINY ASSESSMENT, THE ASSESSEES WRONG CLAIM WOULD NOT HA VE BEEN DETECTED AND IT WOULD HAVE MEANT LOSS TO THE REVENU E. IT WAS SUBMITTED THAT IT WAS A CLEAR CASE OF FILING OF INA CCURATE ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 4 PARTICULARS BECAUSE THE AMOUNT WHICH HAD BEEN CONFI RMED BY THE LD. CIT (APPEALS) HAD NOT BEEN SPENT WITHIN A PERIO D OF 3 YEARS FROM THE DATE OF TRANSFER OF THE CAPITAL ASSET AND THE HOUSE UNDER CONSTRUCTION WAS NOT FIT FOR HABITATION EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS PRAYED THAT THE PENA LTY DELETED BE RESTORED. 4. IN RESPONSE, THE LD. AUTHORISED REPRESENTATIVE P LACED EXTENSIVE RELIANCE ON THE FINDINGS OF THE LD. CIT ( APPEALS) WHILE DELETING THE IMPUGNED PENALTY. 5. THE LD. AR ALSO SUBMITTED THAT THE CO WAS NOT BE ING PRESSED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT TH AT THE PENALTY HAS BEEN IMPOSED ON THE QUANTUM DISALLOWANCE WHICH HAS BEEN CONFIRMED BY THE LD. CIT (A) ON THE GROUND THAT THE QUANTUM WAS NOT SPENT WITHIN THREE YEARS FROM THE DATE OF TRANS FER OF THE CAPITAL ASSET. SINCE THE ASSESSEE HAS NOT PREFERRED ANY APP EAL AGAINST THE QUANTUM DISALLOWANCE, AS CONFIRMED BY THE LD. CIT ( A), THE SAME HAS ATTAINED FINALITY. HOWEVER, IN THE CASE OF CIT VS. SADARMAL KOTHARI REPORTED IN 302 ITR 286 (MAD), THE QUESTION RAISED BEFORE THE HONBLE MADRAS HIGH COURT WAS, WHETHER, ON THE FACTS AND IN ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 5 THE CIRCUMSTANCES OF THE CASE, THE INCOME-TAX APPEL LATE TRIBUNAL WAS RIGHT IN LAW IN HOLDING, WHEN THE CONDITIONS LA ID DOWN IN SUB- SECTION (1) OF SECTION 54F AND THE BOARD CIRCULAR NO. 667, DATED OCTOBER 18, 1993[1993] 204 ITR (ST.) 103), CLEARLY STATED THAT THE PURCHASE/CONSTRUCTION IS TO BE COMPLETED WITHIN STI PULATED TIME IS NOT MANDATORY FOR CLAIMING EXEMPTION UNDER THE ACT?' THE COURT ANSWERED THE QUESTION THUS: IN THE SECOND QUESTION OF LAW FORMULATED, A REFERENCE IS MADE TO THE BOARD CIRCUL AR NO. 667, DATED OCTOBER 18, 1993 ([1993] 204 ITR (ST.) 103). ON A READING OF THE CIRCULAR, WE ARE OF THE VIEW THAT THE CIRCULAR WOULD NOT IN ANY WAY ADVANCE THE CASE OF THE REVENUE TO COME TO THE CONCLUSION THAT IN ORDER TO HAVE THE BENEFIT UNDER SECTION 54F OF T HE INCOME-TAX ACT, THE CONSTRUCTION SHOULD HAVE BEEN COMPLETED. THUS, ESSENTIALLY, ALTHOUGH, THE ASSESSEE HAS ACCEPTED THE QUANTUM DIS ALLOWANCE, IT DOES NOT AUTOMATICALLY QUALIFY FOR THE IMPOSITION O F PENALTY. THE LD. CIT (APPEALS) HAS, IN ANY CASE, ALLOWED AN AMOU NT OF RS.3.0 CRORE PAID TO THE BUILDER TOWARDS COST OF THE UNIT. THE REASON FOR NOT ALLOWING THE EXEMPTION ON THE BALANCE IS NOT TH AT THE CLAIM OF THE ASSESSEE WAS FALSE BUT BECAUSE THE AMOUNT WAS N OT ACTUALLY SPENT BY THE DEVELOPER WITHIN THE STIPULATED TIME. THE LD. CIT (A), WHILE PARTIALLY UPHOLDING THE DISALLOWANCE, HELD TH AT ANY ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 6 RESIDENTIAL UNIT BECAME HABITABLE ONLY WHEN THE INT ERIORS GOT COMPLETED AND IN ITS ABSENCE THE UNIT WAS NOT HABIT ABLE. 6.1 FURTHER, IT IS ALSO A SETTLED LAW THAT PENALTY IS NOT AUTOMATICALLY LEVIABLE IN EACH AND EVERY CASE WHERE THE QUANTUM A DDITION HAS BEEN CONFIRMED. THE HONBLE SUPREME COURT, IN THE CASE O F HINDUSTAN STEEL LTD. V. STATE OF ORISSA 83 ITR 26, HAD LAID D OWN THE POSITION OF LAW BY HOLDING THAT THE ASSESSING OFFICER IS NOT BO UND TO LEVY PENALTY AUTOMATICALLY SIMPLY BECAUSE THE QUANTUM ADDITION H AS BEEN SUSTAINED. ALSO IN CASE OF CIT V. KHODAY ESWARA (83 ITR 369) (SC), INCIDENTALLY REPORTED IN SAME ITR VOLUME, IT IS HEL D THAT PENALTY CANNOT BE LEVIED SOLELY ON BASIS OF REASONS GIVEN I N ORIGINAL ORDER OF ASSESSMENT. THE HONBLE SUPREME COURT HAS RECENTLY REITERATED THE LAW IN CASE OF DILIP N. SHROFF V. JT. CIT [2007] 29 1 ITR 519 BY HOLDING IN PARA 62 THAT FINDING IN ASSESSMENT PROCEEDINGS C ANNOT AUTOMATICALLY BE ADOPTED IN PENALTY PROCEEDINGS AND THE AUTHORITIES HAVE TO CONSIDER THE MATTER AFRESH FROM DIFFERENT A NGLE. THE STATUTE REQUIRES A SATISFACTION ON THE PART OF THE ASSESSIN G OFFICER. HE IS REQUIRED TO ARRIVE AT A SATISFACTION SO AS TO SHOW THAT THERE IS PRIMARY EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAD CONCEAL ED THE AMOUNT OR FURNISHED INACCURATE PARTICULARS AND THIS ONUS IS T O BE DISCHARGED BY THE DEPARTMENT. WHILE CONSIDERING WHETHER THE ASSE SSEE HAS BEEN ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 7 ABLE TO DISCHARGE HIS BURDEN THE ASSESSING OFFICER SHOULD NOT BEGIN WITH THE PRESUMPTION THAT HE IS GUILTY. SINCE THE B URDEN OF PROOF IN PENALTY PROCEEDINGS VARIES FROM THAT IN THE ASSESSM ENT PROCEEDINGS, A FINDING IN THE ASSESSMENT PROCEEDINGS THAT A PARTIC ULAR RECEIPT IS INCOME CANNOT AUTOMATICALLY BE ADOPTED, THOUGH A FI NDING IN THE ASSESSMENT PROCEEDINGS CONSTITUTES GOOD EVIDENCE IN THE PENALTY PROCEEDINGS. IN THE PENALTY PROCEEDINGS THE AUTHORI TIES MUST CONSIDER THE MATTER AFRESH AS THE QUESTION HAS TO BE CONSIDE RED FROM A DIFFERENT ANGLE. IT IS IMPORTANT TO KEEP IN MIND TH E FUNDAMENTAL LEGAL PROPOSITION THAT ASSESSMENT PROCEEDINGS ARE NOT CON CLUSIVE. ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT. FINDINGS IN ASSESSMENT PROCEEDINGS DONT OPERATE AS RES JUDICATA IN PENALTY PROCEEDINGS. FOR THIS PROPOSITI ON RELIANCE IS PLACED ON THE DECISION IN CIT VS. DHARAMCHAND L. SHAH (199 3) 204 ITR 462 (BOM). IN VIJAY POWER GENERATORS LTD VS. ITO (2008) 6 DTR 64 (DEL) IT WAS HELD THAT IT IS WELL SETTLED THAT THOUGH THEY CONSTITUTE GOO D EVIDENCE DO NOT CONSTITUTE CONCLUSIVE EVIDENCE IN P ENALTY PROCEEDINGS. DURING PENALTY PROCEEDINGS, THERE HAS TO BE REAPPRA ISAL OF THE VERY SAME MATERIAL ON THE BASIS OF WHICH THE ADDITION WA S MADE AND IF FURTHER MATERIAL IS ADDUCED BY THE ASSESSEE IN THE COURSE OF THE PENALTY PROCEEDINGS, IT IS ALL THE MORE NECESSARY T HAT SUCH FURTHER ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 8 MATERIAL SHOULD ALSO BE EXAMINED IN AN ATTEMPT TO A SCERTAIN WHETHER THE ASSESSEE CONCEALED HIS INCOME OR FURNISHED INAC CURATE PARTICULARS. THUS, UNDER PENALTY PROCEEDINGS ASSESS EE CAN DISCHARGE HIS BURDEN BY RELYING ON THE SAME MATERIAL ON THE B ASIS OF WHICH ASSESSMENT IS MADE BY CONTENDING THAT ALL NECESSARY DISCLOSURES WERE MADE AND THAT ON THE BASIS OF MATERIAL DISCLOSED TH ERE CANNOT BE A CASE OF CONCEALMENT OF INCOME OR FURNISHING INACCUR ATE PARTICULARS OF INCOME. FURTHER IF THERE IS ANY MATERIAL OR ADDITIO NAL EVIDENCE WHICH WAS NOT PRODUCED DURING ASSESSMENT PROCEEDINGS SAME CAN BE PRODUCED IN PENALTY PROCEEDINGS AS BOTH ASSESSMENT AND PENALTY PROCEEDINGS ARE DISTINCT AND SEPARATE. IN CIT VS. M /S SIDHARTHA ENTERPRISES (2009) 184 TAXMAN 460 (P & H)(HC) IT WA S HELD THAT THE JUDGMENT IN DHARMENDRA TEXTILE CANNOT BE READ AS LA YING DOWN THAT IN EVERY CASE WHERE PARTICULARS OF INCOME ARE INACC URATE, PENALTY MUST FOLLOW. EVEN SO, THE CONCEPT OF PENALTY HAS NO T UNDERGONE CHANGE BY VIRTUE OF THE SAID JUDGMENT. PENALTY IS I MPOSED ONLY WHEN THERE IS SOME ELEMENT OF DELIBERATE DEFAULT. 6.2 AT THIS JUNCTURE IT MAY BE APPOSITE TO REFER TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS (P.) LTD. [2010] 322 ITR 158/189 TAXMAN 322, WHEREIN THE COUR T WHILE INTERPRETING THE PROVISIONS OF SECTION 271(1)( C ) OF THE ACT, HAS HELD ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 9 THAT A GLANCE AT THE SAID PROVISION WOULD SUGGEST T HAT IN ORDER TO BE COVERED BY IT, THERE HAS TO BE CONCEALMENT OF THE P ARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE OF HIS INCOME. IN THE FACTS OF THAT CASE, THE COURT FOUND THAT IT WAS NOT A CASE OF CONCEALMENT OF THE PARTICULARS OF THE INCOME, NOR WAS IT THE CASE OF THE REVENUE EITHER. HOWEVER, THE COUNSEL FOR THE REVENUE SUGGESTED THAT BY MAKING AN INCORRECT CLAIM FOR THE EXPENDITURE ON INTEREST, THE ASSESSEE HAD F URNISHED INACCURATE PARTICULARS OF INCOME. THE COURT OBSERVED THAT IT H AD TO ONLY SEE AS TO WHETHER IN THAT CASE, AS A MATTER OF FACT, THE ASSE SSEE HAD GIVEN INACCURATE PARTICULARS. THE COURT NOTED THAT AS PER LAW LEXICON, THE MEANING OF THE WORD 'PARTICULAR' IS A DETAIL OR DETAILS (IN THE PLURAL SENSE); THE DETAILS OF A CLAIM, OR THE SEPARATE ITE MS OF AN ACCOUNT. THEREFORE, THE WORD 'PARTICULAR' USED IN SECTION 27 1(1)( C ) WOULD EMBRACE THE MEANING OF THE DETAILS OF THE CLAIM MAD E. THE COURT FURTHER OBSERVED THAT IN WEBSTER'S DICTIONARY, THE WORD 'INACCURATE' HAS BEEN DEFINED AS: 'NOT ACCURATE, NOT EXACT OR CO RRECT; NOT ACCORDING TO TRUTH; ERRONEOUS; AS AN INACCURATE STATEMENT, CO PY OR TRANSCRIPT.' THE COURT OBSERVED THAT READING THE WORDS 'INACCURA TE' AND 'PARTICULARS' IN CONJUNCTION, THEY MUST MEAN THE DE TAILS SUPPLIED IN THE RETURN, WHICH ARE NOT ACCURATE, NOT EXACT OR CO RRECT, NOT ACCORDING ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 10 TO TRUTH OR ERRONEOUS. THE COURT NOTED THAT IT WAS AN ADMITTED POSITION THAT NO INFORMATION GIVEN IN THE RETURN WA S FOUND TO BE INCORRECT OR INACCURATE. IT WAS NOT AS IF ANY STATE MENT MADE OR ANY DETAIL SUPPLIED WAS FOUND TO BE FACTUALLY INCORRECT AND ACCORDINGLY, HELD THAT, PRIMA FACIE , THE ASSESSEE COULD NOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. THE COURT REPELL ED THE CONTENTION RAISED BY THE COUNSEL FOR THE REVENUE THAT 'SUBMITT ING AN INCORRECT CLAIM IN LAW FOR THE EXPENDITURE ON INTEREST WOULD AMOUNT TO GIVING INACCURATE PARTICULARS OF SUCH INCOME'. THE COURT HELD THAT IN ORDER TO EXPOSE THE ASSESSEE TO THE PENALTY UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROVISION CAN NOT BE INVOKED. BY ANY STRETCH OF IMAGINATION, MAKING AN INCORRECT CLA IM IN LAW CANNOT TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. TH EREFORE, IT IS OBVIOUS THAT IT MUST BE SHOWN THAT THE CONDITIONS U NDER SECTION 271(1)( C ) MUST EXIST BEFORE THE PENALTY IS IMPOSED. THE COU RT FURTHER OBSERVED THAT THERE CAN BE NO DISPUTE THAT EVERYTHI NG WOULD DEPEND UPON THE RETURN FILED BECAUSE THAT IS THE ONLY DOCU MENT, WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WITH REGARD TO THE PROVISIONS OF SECTION 271(1)(C ) OF THE ACT PERTAIN ING TO PENALTY, THE HONBLE APEX COURT HAS AUTHORITATIVELY LAID DOWN TH AT MAKING OF A CLAIM BY THE ASSESSEE WHICH IS NOT SUSTAINABLE WILL NOT TANTAMOUNT TO ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 11 FURNISHING INACCURATE PARTICULARS. IN CIT VS. RELIA NCE PETROPRODUCTS PVT. LTD. 322 ITR 158 (SC), THE HONBLE APEX COURT HAS HELD AS FOLLOWS: A GLANCE AT THIS PROVISION WOULD SUGGEST THAT IN O RDER TO BE COVERED, THERE HAS TO BE CONCEALMENT OF PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE F URNISHED INACCURATE PARTICULARS OF HIS INCOME. THE PRESENT I S NOT A CASE OF CONCEALMENT OF INCOME. THAT IS NOT THE CASE OF THE REVENUE EITHER. HOWEVER, THE LD. COUNSEL FOR THE REVENUE SUGGESTED THAT BY MAKING INCORRECT CLAIM FOR THE EXPENDITURE ON INTER EST, THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF IN COME. AS PER LAW LEXICON, THE MEANING OF THE WORD 'PARTICULAR' I S A DETAIL OR DETAILS (IN PLURAL SENSE); THE DETAILS OF A CLAIM, OR THE SEPARATE ITEMS OF AN ACCOUNT. THEREFORE, THE WORD 'PARTICULA RS' USED IN THE SECTION 271 (1) (C) WOULD EMBRACE THE MEANING OF TH E DETAILS OF THE CLAIM MADE. IT IS AN ADMITTED POSITION IN THE PRESE NT CASE THAT NO INFORMATION GIVEN IN THE RETURN WAS FOUND TO BE INC ORRECT OR INACCURATE. IT IS NOT AS IF ANY STATEMENT MADE OR A NY DETAIL SUPPLIED WAS FOUND TO BE FACTUALLY INCORRECT. HENCE , AT LEAST, PRIMA FACIE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. THE LEARNED COUNSEL ARGUED THAT 'SUBMITTING AN INCORRECT CLAIM IN LAW FOR THE EXPEN DITURE ON INTEREST WOULD AMOUNT TO GIVING INACCURATE PARTICUL ARS OF SUCH INCOME.' WE DO NOT THINK THAT SUCH CAN BE THE INTER PRETATION OF THE CONCERNED WORDS. THE WORDS ARE PLAIN AND SIMPLE. IN ORDER TO EXPOSE THE ASSESSEE TO THE PENALTY UNLESS THE CASE IS STRICTLY ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 12 COVERED BY THE PROVISION, THE PENALTY PROVISION CAN NOT BE INVOKED. BY ANY STRETCH OF IMAGINATION, MAKING AN INCORRECT CLAIM IN LAW CANNOT TANTAMOUNT TO FURNISHING INACCURATE PARTICUL ARS. 6.3 IN THE PRESENT APPEAL, THE ASSESSEE HAS SUBMIT TED THE FULL PARTICULARS. THERE IS NO DISPUTE THAT SHE HAS NOT P AID THE AMOUNT TO THE BUILDER OR THAT SHE HAS MADE A FALSE OR INFL ATED CLAIM. THUS, THE CASE DEFINITELY DOES NOT FALL EITHER OF THE TWO LIMBS OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS UNDER THE MAIN PROVISION. COMING TO EXAMINE THE CASE UNDER EX PLANATION 1 TO 271(1)(C), WE HAVE TO EXAMINE WHETHER THE CASE I N QUESTION FALLS WITHIN THE OTHER TWO LIMBS VIZ. CLAUSE (A) AND (B) AND EFFECT THEREOF. CLAUSE (A) APPLIES WHEN AN ASSESSEE FAILS TO FURNISH EXPLANATION OR WHEN AN EXPLANATION IS FOUND TO BE F ALSE. CLAUSE (B) APPLIES TO CASES WHERE EXPLANATION IS OFFERED B UT THE ASSESSEE IS NOT ABLE TO SUBSTANTIATE THE EXPLANATION. IN SUC H CASES, WE HAVE TO EXAMINE TWO CONDITIONS: (1) WHETHER THE ASSESSEE HAS BEEN ABLE TO SHOW THAT HIS EXPLANATION WAS BONA FIDE; (2) WHE THER THE ASSESSEE HAD FURNISHED AND DISCLOSED FACTS AND MATE RIAL RELATING TO COMPUTATION OF HIS INCOME. ONUS OF ESTABLISHING THAT THE ASSESSEE SATISFIES THE TWO CONDITIONS IS ON THE ASS ESSEE. BOTH THE CONDITIONS HAVE TO BE SATISFIED. IN CASE THE ASSESS EE SATISFIES THE ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 13 TWIN CONDITIONS, PENALTY IS NOT BE IMPOSED. AS FAR AS THE EXPLANATION TO THE SECTION 271(1)(C) IS CONCERNED, THE ASSESSEE HAS STATED ALL THE FACTS AND THERE IS NO ALLEGATION THA T SHE HAS NOT FURNISHED THE FULL FACTS AND MATERIALS. SHE HAD STA TED THAT SHE HAD REASONABLE GROUNDS TO HOLD THE VIEW THAT SHE WAS EN TITLED TO DEDUCTION UNDER SECTION 54F, AS SHE HAD DONE EVERYT HING UNDER HER CONTROL AND INVESTED THE CONSIDERATION FOR A RE SIDENTIAL HOUSE. ALTHOUGH THE EXPLANATION COULD NOT BE SUBSTANTIATED , THE EXPLANATION COULD NOT BE SAID TO BE LACKING IN BONA FIDE. IT IS ALSO SEEN THAT THE ASSESSEE HAD FILED RETURN FOR THE ASS ESSMENT YEAR 09-10 IN JULY 2009 WHEREAS THE HOUSE WAS TO BE RECO NSTRUCTED WITHIN THE OUTER LIMIT BY JANUARY 2011. THUS, THE A SSESSEE CANNOT BE ACCUSED OF FURNISHING INACCURATE PARTICULARS OF INCOME AS AT THE TIME OF FILING RETURN OF INCOME SHE HAD NO IDEA THAT THE HOUSE SHE WAS INVESTING IN WILL NOT GET COMPLETED WITHIN THE STIPULATED TIME. THE QUANTUM DISALLOWANCE HAS, ANY WAY, BEEN A CCEPTED BY THE ASSESSEE AND THE TAX DUE THEREON HAS ALSO BEEN PAID. IN OUR CONSIDERED OPINION, ON THE FACTS OF THE CASE, A CAS E OF FURNISHING OF INACCURATE PARTICULARS OF INCOME IS NOT MADE OUT. A CCORDINGLY, RESPECTFULLY FOLLOWING THE RATIO OF THE JUDGMENTS A S STATED IN THE PRECEDING PARAGRAPHS, WE FIND NO REASON TO INTERFER E WITH THE ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 14 FINDINGS OF THE LD. CIT (A) ON THE ISSUE AND WE UPH OLD HIS ORDER DELETING THE PENALTY. 7. THE DEPARTMENTS APPEAL STANDS DISMISSED. 8. AS FAR AS THE CO OF THE ASSESSEE IS CONCERNED, S INCE THE LD. AR HAS STATED THAT THE CO IS NOT BEING PRESSED, THE CO IS DISMISSED AS NOT PRESSED. 9. IN THE FINAL RESULT, THE APPEAL OF THE DEPARTMEN T AS WELL AS THE CO OF THE ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.01.201 9. SD/- SD/- (G.D.AGRAWAL) (SUDHANSHU SR IVASTAVA) VICE PRESIDENT JUDICIA L MEMBER DATED: 16.01.2019 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO. 6796/DEL/2015 (C.O. NO. 87/DEL/2016) 15