SHANTIDEVI K CHHANGANI ( LEGAL HEIR OF LATE SHREI KIRANKUMAR CHHAGANI), MUMBAI V. ITO 14(1)(1), MUMBAI

ITA 1510/MUM/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62473 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 05-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURALI
• Assessee Lawyers: N M PORWAL
• Keywords: Business income; Speculation loss
• Section: 43(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE SHRI R.S.SYAL, AM & SHRI AMIT SHUKLA, JM ITA NO.1510/MUM/2012 ASSESSMENT YEAR: 2007-2008 SHANTIDEVI K CHHANGANI (LEGAL HEIR OF LATE SHRI KIRANKUMAR CHHAGANI), 801B, PATWA CHAWL, SHOP NO.7, ZAVERI BAZAR, MUMBAI-400 002. PAN NO.ADOPC 4227 A ITO 14(1)(1), MUMBAI. APPELLANT VS. RESPONDENT APPELLANT BY : MR. N.M.PORWAL RESPONDENT BY : MR. M. MURALI DATE OF HEARING : 31 ST MAY 2012 DATE OF PRONOUNCEMENT : 8 TH JUNE, 2012 O R D E R PER AMIT SHUKLA (J.M.) : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 16-1-2012, PASSED BY THE CIT(A )-25, MUMBAI IN RELATION TO PENALTY PROCEEDING UNDER SECTION 271(1)(1)(C) FOR THE ASSESSMENT YEAR 2007-2008. 2 . AS PER THE GROUNDS OF APPEAL, THE ASSESSEE IS AGGRIEVED BY LEVY OF PENALTY OF ` .4,04,401/- UNDER SECTION 271(1)(1)(C), FIRSTLY, ON ACCOUNT OF TREATMENT OF BUSINESS LOSS AS SPECULATION LOSS BY THE ASSESSING OFFICER AND SECONDLY, THE PENALTY ORDER HAS BEEN PASSED ON A DEAD PERSON WITHOUT IMPLEADING THE LEGAL HEIR AND THEREFORE, SUCH A PENALTY ORDER IS LIABLE TO BE HELD AS NULL AND VOID . 3 . THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES BUSINESS INCOME FROM PROPRIETARY CONCERN VIZ. CHHANGANI ITA NO : 1510/M/12 2 BULLION, DEALING IN GOLD AND SILVER BAR AND OTHER BUSINESS OF TRADING IN MCX. THE RETURN OF INCOME WAS FILED ON A LOSS OF (-) ` .9,26,100/- AFTER ADJUSTING THE LOSS CLAIMED FROM MCX TRADING AMOUNTING TO ` .15,14,671/- AGAINST THE PROFIT OF ` .5,12,670/- FROM BULLION BUSINESS. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 143(3), REQUIRED THE ASSESSEE AS TO WHY THE LOSS CLAIMED ON MCX TRADING SHOULD NOT BE DISALLOWED BEING SPECULATIVE LOSS. IN RESPONSE, THE ASSE SSEE SUBMITTED AS UNDER :- WE ON BEHALF OF OUR ABOVE REFER ASSESSEE & IN CONTINUATION WITH OUR PREVIOUS HEARING WE HEREBY W ANT TO STATE THAT ASSESSEE HAS TWO FULL TIME BUSINESS I.E. ONE OF GOLD & SILVER BAR TRADING AND OTHER IS FULL TIME BUSINESS OF MCX BUSINESS ALSO, FOR WHICH HE IS A REGULAR MEMBER OF MCX. HENC E BOTH BUSINESS INCOME IS FROM NORMAL BUSINESS ONLY & NOT A SPECULATION BUSINESS. ON THE ABOVE FACTS WE REQUEST YOU TO CONSIDER THE MCX BUSINESS AS INCOME FROM NORMAL BUSINESS ONLY & SHALL BE GLAD TO SUBMIT ANY OTHER DETAILS AFTER HEARING FROM YOU. SUCH AN EXPLANATION WAS NOT ACCEPTED BY THE ASSESSING OFFICER ON THE GROUND THAT MCX TRADING IN GOLD AND SILVER IS IN THE NATURE OF SPECULATION BUSINESS AS PER THE PR OVISIONS OF SECTION 43(5) AND HENCE, THE LOSS IS TO BE TREATED AS SPECUL ATIVE BUSINESS LOSS WHICH CANNOT BE ADJUSTED AGAINST NORMAL BUSINESS AS PER PROVISIONS OF SECTION 73(1). THUS, THE ADJUSTMENT OF LOSS OF ` .15,14,671/- WAS DENIED AND WAS HELD TO BE SET OFF ONLY AGAINST SPECULAT ION BUSINESS. THE ASSESSEE DID NOT PREFER ANY APPEAL AGAINST THE QUANTUM ORDER. 4. IN THE COURSE OF THE PENALTY PROCEEDING, IN RESPONSE TO SHOW CAUSE NOTICE, THE ASSESSEE SUBMITT ED THAT THERE WAS NO CONCEALMENT ITA NO : 1510/M/12 3 OF INCOME OR FURNISHING OF ANY INACCURATE PARTICULARS OF INCOME AS THE BUSINESS LOSS CLAIMED BY THE ASSESSEE HAS BEEN TREATED AS SPECULATIVE LOSS WHICH DOES NOT WARR ANT ANY PENALTY U/S. 271 (1)(C). IN SUPPORT OF IT, RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. AURIC INVESTMENT AND SECURITIES LTD., REPORTED IN 310 ITR 121 (DEL.) , WHEREIN THE HONBLE HIGH COURT HAS HELD THAT MERE TREATMENT OF BUSI NESS LOSS AS SPECULATION LOSS DID NOT AUTOMATICALLY WARRANT THE INFERENCE OF CONCEALMENT OF INCOME. THE ASSESSING OFFICER, HOW EVER, REJECTED THE EXPL ANATION AND HELD THAT THE SAID DECISION OF THE HONBLE DELHI HIGH COURT IS NOT APPLICABLE TO THE FACTS OF THE ASSESSEES CASE. HE FURTHER OBSERVED THAT HAD THE CASE OF THE ASSESSEE NOT SELECTED FOR SCRUTINY, THE INCOME TO THE EXTENT OF ` .5,12,670/- WOULD HAVE ESCAPED FROM TA XATION. HE, THEREFORE, RELYING UPON THE DECISION OF THE HONBL E SUPREME IN THE CASE OF CIT VS. DHARMENDRA TEXTILES PROCESSORS, REPORTED IN 306 ITR 277(SC) , HELD THAT THE PENALTY IS LEVIABLE AND ACCORDINGLY LEVIED THE PENALTY OF ` .4,04,401/-. 5 . BEFORE THE CIT(A), THE ASSESSEE RAISED A PRELIMINARY GROUND THAT THE PENALTY ORDER HAS BEEN PA SSED UPON THE DEAD PERSON, WITHOUT IMPLEADING THE LEGAL HEIR AND THEREFORE SUCH A PENALTY ORDER IS NOT MAINTAINABLE. ON MERITS ALSO, SUBMISSIONS WERE MADE BEFORE THE CIT(A). THE CIT(A) REJECTED BOT H THE PLEAS OF THE ASSESSEE AND ITA NO : 1510/M/12 4 CONFIRMED THE PENALTY FOR THE REASONS GIVEN IN DETAIL IN THE APPELLATE ORDER. 6 . BEFORE US, LEARNED AR ON BEHALF OF THE ASSESSEE BESIDES MAKING SUBMISSIONS ON THE PRELIMINAR Y ISSUES OF PASSING OF PENALTY ORDER ON A DEAD PERSON ALSO MADE ELABORATE SUBMISSION ON MERITS. HIS MAIN CONTENTION WAS THAT THERE IS NO DISPUTE ABOUT THE INCURRING OF THE LOSS, EXCEPT FOR THE REASON THAT BUSINESS LOSS HAS BEEN TREATED AS SPECULATIVE LOSS, THIS ALONE CANNOT BE A GROUND FOR LEVY OF PENALTY FOR CONCEALMENT OF INCOME OR FURNISHI NG PARTICULARS AS STIPULATED IN SECTION 271(1)(1)(C). ON THE OTHER HAND, LEARNED CIT DR RELIED UPON THE FINDINGS GIVEN BY THE CIT(A) AS GIVEN IN THE APPELLATE ORDER. 7 . WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD . IT IS UNDISPUTED FACT THAT THE ASSESSEE CARRIED OUT TWO BUSINESSE S, ONE, TRADING IN MCX AND OTHER TRADING OF GOLD & SILVER BAR. IN TRADING OF MCX, LOSS HAS BEEN INCURRED AMOUNTING TO ` .15,14,671/- AND IN THE TRADI NG OF GOLD AND SILVER, HE HAD PROFIT OF ` .5,12,670/-. THE ASSESSEE HAS TREATED THE LOSS IN MCX BUSINESS AS BUSINESS LOSS AND HAS CLAI MED SET OFF AGAINST THE PROFIT OF OTHER BUSINESS. THUS, THERE IS NO DI SPUTE ABOUT THE INCURRING OF A LOSS. THE ONLY ISSUE IS WHETHER IT SHOULD BE TREATED AS SPECULATIVE LOSS OR BUSINESS LOSS. THE ASSESSEE ALL THROUGHOUT HAS BEEN TREATING BOTH BUSINESS AS NORMAL BUSINESS AND INCOME HAS BEEN SHOWN AS BUSINESS INCOME. LEARNED CIT(A) IN THE APPELLATE ORDER HAS TRIED TO ITA NO : 1510/M/12 5 MADE OUT THE CASE THAT THE ASSESS EE HAS NOT SHOWN THE SALES TURN OVER OF MCX TRADING ACTIVITIES IN THE PROFIT LOSS ACCOUNT BUT HAS TAKEN THE TRADING LOSS OF MCX BUSINESS IN THE PERSONAL CAPITAL ACCOUNT ONLY. THIS OBSERVATION WILL NOT MAKE ANY DIFFERENCE SO LONG AS THE FACTS REMAINS THAT ALL THE DETAILS WERE FURNISHED ALONG WITH THE RETURN AND IN THE BALANCE SHEET. 7.1 FROM THE PERUSAL OF THE ASSESSM ENT ORDER AND RECORDS, IT IS SEEN THAT ASSESSEE HAD FURNISHED ALL THE REQUISITES INFORMATION AS WAS REQUIRED BY THE ASSESSING OFFICER AND AL SO ALL THE FACTS MATERIAL TO THE COMPUTATION OF INCOME ALONG WITH THE BALANCE SHEET WERE FILED ALONG WITH THE RETURN OF INCOME. IN T HE PENALTY ORDER, THE ASSESSING OFFICER HAS NO WHERE CATEGORICALLY HELD THAT THE EXPLANATION OF THE ASSESSEE IS FALSE OR HIS ACTION OF TREATING SPECULATION LOSS AS BUSINESS LOSS IS NOT BONAFIDE AND NOTHING HAS B EEN BROUGHT ON RECORD THAT THE ASSESSEE HAS FURNISHED ANY INACCURATE PARTICULARS OR HAS CONCEALED ANY INCOME IN THIS REGARD. ONCE THE ASSESSEE HA D FURNISHED ALL THE DETAILS OF ITS INCOME AND LOSS IN ITS RETURN OF INCOME, WHICH DETAILS, IN THEMSELVES, WERE NOT FOUND TO BE INACCURATE NOR HAS BEEN VIEWED AS CONCEALMENT OF INCOME ON THE PART OF THE ASSESSEE, HE CANNOT BE CHARGED UNDER PENAL PROVISION UNDER SECTION 271(1)(C ). MERE TREATMENT OF A BUSINESS LOSS AS A SPECULATION LOSS DOES NOT AUTOMATICALLY WARRANT ANY INFERENCE OF CONCEALMENT OF INCOME IN THIS CASE. THE DECISION RELIED UPON BY THE ASSESSEE OF DELHI HIGH COURT IN THE CASE OF CIT VS. AURIC ITA NO : 1510/M/12 6 INVESTMENT AND SECURITIES LTD (SUPRA) CLEARLY CLINCHES THE ISSUE IN FAVOUR OF THE ASSESSEE, WHEREIN THE HONBLE HIGH COURT HAS SIMILARLY HELD THAT MERE TREATMENT OF BUSINE SS LOSS AS SPECULATION LOSS, DOES NOT AUTOMATICALLY LEAD TO CONCEALMENT OF INCOME OR FURNISHING OF ANY INACCURATE PARTICULARS. THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETRO PRODUCT, REPORTED IN 322 ITR 158 ALSO APPLIES IN THE INSTANT CASE, WHEREIN THEIR LORDSHIPS AFTER CONSIDERING THE JUDGMENT OF CIT VS. DHARMENDRA TEXTILES PROCESSORS (SUPRA) , AS HAS BEEN RELIED UPON BY THE ASSESSING OFFICER AS WELL AS BY THE CIT (A ), HAS OBSERVED AND HELD AS UNDER :- A GLANCE AT THIS PROVISION WOUL D SUGGEST THAT IN ORDER TO BE COVERED, THERE HAS TO BE CONCEAL MENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE PRESENT IS NOT A CASE OF CONCEALMENT OF THE INCOME . THAT IS NOT THE CASE OF THE REVENUE EITHER. HOWE VER, THE LEARNED COUNSEL FOR REVENUE SUGGESTED THAT BY MAKING INCORRECT CLAIM FOR THE EXPENDITURE ON INTEREST, THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF THE INCOME. AS PER LAW LEXICON, THE M EANING OF THE WORD 'PARTICULAR' IS A DETAIL OR DETAILS (I N PLURAL SENSE) ; THE DETA ILS OF A CLAIM, OR THE SEPARATE ITEMS OF AN ACCOUNT. T HEREFORE, THE WORD 'PARTICULARS' USED IN THE SECTION 271(1)(C) WOULD EMBRACE THE MEANING OF THE DETAILS OF THE CLAIM M ADE. IT IS AN ADMITTED POSITION IN THE PRESENT CASE THAT NO INFORMATION GIVEN IN THE RETURN WAS FOUND TO BE INCORRECT OR INACCURATE. IT IS NOT AS IF ANY STATEMENT MADE OR ANY DETAIL SUPPLIED WAS FOUND TO BE FACTUALLY INCORRECT. HENCE, AT LEAST, PRIMA FACIE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. THE LEAR NED COUNSEL ARGUED THAT 'SUBMITTING AN INCORRECT CLAIM IN LAW FOR THE EXPENDITURE ON INTEREST WOULD AMOUNT TO GIVING INACCURATE PARTICU LARS OF SUCH INCOME'. WE DO NOT THINK THAT SUCH CAN BE THE INTERP RETATION OF THE CONCERNED WORDS. THE WORDS ARE PLAIN AND SIMPLE. IN ORDER TO EXPOSE THE ASSESSEE TO THE PENALTY UNLESS THE CASE IS STRI CTLY COVERED BY THE PROVISION, THE PENALTY PROVISION CANNOT BE IN VOKED. BY ANY STRETCH OF IMAGINATION, MAKING AN INCORRECT CL AIM IN LAW CANNOT TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. IN CIT V. ATUL M OHAN BINDAL [2009] 9 SCC 589*, WHERE THIS COURT WAS CONSIDERING THE SAME PROVISION, THE COURT OBSERVED T HAT THE ASSESSING OFFICER HAS TO BE SATISFIED THAT A PERSON HAS C ONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THIS COURT REFERRED TO ANOTHER DECISION OF THIS COURT IN UNION OF INDIA V. DHARAMENDRA ITA NO : 1510/M/12 7 TEXTILE PROCESSORS [2008] 13 SCC 369** AS ALSO, THE DECISION IN UNION OF INDIA V. RAJASTHAN SPG. & WVG. MILLS [2009] 13 SCC 448*** AND REITERATED IN PARAGRAPH 13 THAT (PAGE 13 OF 317 ITR) : '13. IT GOES WITHOUT SAYING THAT FOR APP LICABILITY OF SECTION 271(1)(C), CONDITIONS STATED THEREIN MUST EXIST.' THEREFORE, IT IS OBVIO US THAT IT MUST BE SHOWN THAT THE CONDITIONS UNDER SECTION 271(1)(C) MUST EXIST BEFORE THE PENALTY IS IMPOSED. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BECAUSE THAT IS T HE ONLY DOCUMENT, WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, THE LIAB ILITY WOULD ARISE. IN DILIP N. SHROFF V. JOINT CIT [2007] 6 SCC 32 9#, THIS COURT EXPLAINED THE TERMS 'CONCEALMENT OF INCOME' AND 'FURNISHING INACCURATE PARTICULARS'. THE COURT WENT ON TO HOL D THEREIN THAT IN ORDER TO ATTRACT THE PENALTY UNDER SECTI ON 271(1)(C), MENS REA WAS NECESSARY, AS ACCORDING TO THE COURT, THE WORD 'INACCURATE' SIGNIFIED A DELIBERATE ACT OR OMISSION ON BEHALF OF THE A SSESSEE. IT WENT ON TO HOLD THAT CLAUSE (III) OF SECTION 271(1)(C ) PROVIDED FOR A DISCRETIONARY JURISDICTION UPON THE ASSESSING AUTHOR ITY, INASMUCH AS THE AMOUNT OF PENALTY COULD NOT BE LESS THAN T HE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF SUCH CONCEALMENT OF PARTICULARS OF INCOME, BUT IT MAY NOT EXCEED THREE TIMES THEREOF. IT WAS POINTED OUT THAT THE TERM 'INACCURATE PARTICULARS' WAS NOT DEFINED ANYWHERE IN THE ACT AND, THEREFORE, IT WAS HELD THAT FURNISHING OF AN ASSESSMENT OF THE VALUE OF THE PROPERTY MAY NOT BY ITSELF BE FURNISHING INACCURATE PARTICULARS. IT WAS FURTHER HELD TH AT THE ASSESSING OFFICER MUST BE FOUND TO HAVE FAILED TO PROVE THAT HIS EXPLANATION IS NOT ONLY NOT BONA FIDE BUT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS INCO ME WERE NOT DISCLOSED BY HIM. IT WAS THEN HELD THAT THE EXPLANATI ON MUST BE PRECEDED BY A FINDING AS TO HOW AND IN WHAT MANNER, THE ASSESSEE HAD FURNISHED THE PARTICULARS OF HIS INCOME. THE COURT ULTIMATELY WENT ON TO HOLD THAT THE ELEMENT OF MENS REA WAS ESSENTIAL. IT WAS ONL Y ON THE POINT OF MENS REA THAT THE JUDGMENT IN DILIP N. SHROFF V. JOINT CIT* WAS UPSET. IN UNION OF INDIA V. DHARAMENDRA TEXTILE PROCESSORS**, AFTER QUOTING FROM SECTION 271 EXTENSIVELY AND ALSO C ONSIDERING SECTION 271(1)(C), THE COURT CAME TO THE CONCLUSION THAT SINCE SECTION 271(1)(C) INDICATED THE ELEMENT OF STRICT LIABILITY ON THE ASSESSEE FOR THE CONCEALMENT OR FOR GIVING INACCURATE PARTICULARS WHILE FILING RETURN, THERE WAS NO NECESSITY OF MENS REA. THE COURT W ENT ON TO HOLD THAT THE OBJECTIVE BEHIND THE ENACTMENT OF SECTION 271(1)(C) READ WITH EXPLANATIONS INDICATED WITH THE SAID SECTION WA S FOR PROVIDING REMEDY FOR LOSS OF REVENUE AND SUCH A PENALTY WAS A CI VIL LIABILITY AND, TH EREFORE, WILFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR ATTRACTING CIVIL LIABILITY AS WAS THE CASE IN THE MATTER OF PROSECUTION UNDER SECTION 276C OF THE ACT. THE BASIC REASON WHY DECISI ON IN DILIP N. SHROFF V. JOINT CIT WAS OVERRULED BY THIS COURT IN UNION OF INDIA V. DHARAMENDRA TEXTILE PROCESSORS**, WAS THAT ACCORD ING TO THIS COURT THE EFFECT AND DIFFERENCE BETWEEN SECTION 271(1)(C ) AND SECTION 276C OF THE ACT WAS LOST SIGHT OF IN THE CASE OF DILIP N. SHROFF V. JOINT CIT*. HOWEVER, IT MUST BE POINTED OUT THAT IN UNION OF INDIA V. ITA NO : 1510/M/12 8 DHARAMENDRA TEXTILE PROCESSORS2, NO FAULT WAS FOUND WITH THE REASONING IN THE DECISI ON IN DILIP N. SHROFF V. JOINT CIT*, WHERE THE COURT EXPLAINED THE MEANING OF THE TERMS CONCEAL AND INACCURATE. IT WAS ONLY THE ULTIMATE INFERENCE IN DILIP N. SHROFF V. JOINT CIT* TO THE EFFECT THAT ME NS REA WAS AN ESSENTIAL INGREDIENT FOR THE PENALTY UNDER SECTION 271(1)(C ) THAT THE DECISION IN DILIP N. SHROFF V. JOINT CIT* WAS OVERRULED. WE ARE NOT CONCERNED IN THE PRES ENT 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 WEBSTERS 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. WE HAVE ALREADY SEEN THE MEANING OF THE WORD PARTICULARS IN THE EARLIER PART OF THIS JUDGMENT. READI NG 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 SUPPLI ED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALS E. SUCH NOT BEING THE CASE, THERE WOULD BE NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. A MERE MAKI NG OF THE CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSE SSEE. SUCH CLAIM MADE IN THE RETURN CANNOT AMOUNT TO THE INACCURATE PARTICULARS. X X X X WE DO NOT AGREE, AS THE ASSESSEE HAD FURNISHED ALL THE DETAILS OF ITS EXPENDITURE AS WELL AS INCOME IN ITS RETURN, WHICH DETAILS, IN THEMSELVES, WERE NOT FOUND TO BE INACCURATE NOR COULD BE VIEWED AS THE CONCEALMENT OF INCOME ON ITS PART. IT WAS UP TO THE AUTHORITIES TO ACCEPT ITS CLAIM IN THE RETURN OR NOT. 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, IN OUR OPINION, ATTRACT THE PENALTY UNDER SECTION 271(1)(C). IF WE ACCEPT THE CONTENTION OF THE REVENUE THEN IN CASE OF EVERY RETURN WHERE THE CLAIM MADE IS NOT AC CEPTED BY THE ASSESSING OFFICER FOR ANY REASON, THE ASSESSEE WILL IN VITE PENALTY UNDER SECTION 271(1)(C). THAT IS CLEARLY NOT T HE INTENDMENT OF THE LEGISLATURE. 8 . THUS, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT NO PENALTY FOR CONCEALMENT OF INCOME OR FURNISHING OF ANY INACCURATE PARTICULARS CAN BE LEVIED UNDER SECTION 271(1)(C) AND ACCORDINGLY PENALTY LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY CIT(A) IS DELETED. ITA NO : 1510/M/12 9 9 . OTHER GROUNDS AND THE ISSUES RA ISED BY THE ASSESSEE IS NOT BEING DECIDED AS THE SAME HAS BEC OME ACADEMIC IN VIEW OF THE FINDINGS GIVEN ABOVE. 10 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED ON THIS 8 TH DAY OF JUNE, 2012. SD/- SD/- (R.S.SYAL) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT: 8 TH JUNE, 2012 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, B - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI PKM