SUNIL V. PACHIGAR, MUMBAI V. ACIT CEN CIR-12, MUMBAI

ITA 2101/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8552 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 27-01-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 03-04-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMARD EEP
• Keywords: Gift; Search and seizure; Revised return; Capital Gains
• Section: 271(1)(c); 143(3); 153A; 143(2); 139(1); 27; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI BEFORE SHRI. D.K. AGARWAL (J.M.) AND SHRI T.R. SOOD (A.M.) ITA NO.2101/MUM/2009 ASSESSMENT YEAR : 2003-2004 SUNIL V. PACHIGAR FLAT NO.1, 15 TH FLR., B-WING, SKYSCRAPER BLDG., BHULABHAI DESAI RD., MUMBAI 400 006. PAN : AACPP2166J VS. THE ACIT CEN CIR-12 AAYAKAR BHAVAN, MUMBAI 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI AMARDEEP O R D E R PER D.K. AGARWAL, J.M. THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 05.02.2009 PASSED BY THE LD CIT(A) FOR TH E ASSESSMENT YEAR 2003-04. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE A N INDIVIDUAL, DERIVES INCOME FROM BUSINESS AND OTHER SOURC ES. SEARCH AND SEIZER ACTION U/S.132 OF THE INCOME TAX ACT, 1961 (T HE ACT) WAS CARRIED OUT AT THE OFFICE AND RESIDENTIAL PREMISES OF TH E ASSESSEE ON 24.01.2006. IN RESPONSE TO NOTICE ISSUED U/S.153A OF TH E ACT THE ASSESSEE FILED RETURN DECLARING THE TOTAL INCOME OF ` 1,48,17,870/- INCLUDING THE SURRENDER OF LONG TERM CAPITAL GAIN OF ` 1,45,37,695/- UNDER THE HEAD INCOME FROM OTHER SOURCES. HOWEVER, THE ASSESSMENT WAS COMPLETED AT A INCOME OF ` 1,55,64,900/- VIDE ORDER DATED ITA NO.2101/MUM/2009 ASSESSMENT YEAR : 2003-2004 2 26.12.2007 PASSED U/S.153A R.W.S. 143(3) OF THE ACT. WHILE MAKING THE ASSESSMENT THE ASSESSING OFFICER ALSO INITIATED THE PENA LTY PROCEEDINGS U/S.271(1)(C) OF THE ACT. IN RESPONSE TO NO TICE AS TO WHY PENALTY U/S.271(1)(C) SHOULD NOT BE IMPOSED, IT WAS IN TERALIA SUBMITTED BY THE ASSESSEE THAT DEPOSITS OF ` 7,565/- IN THE POST OFFICE SAVING BANK ACCOUNT WERE OUT OF CASH GIFTS RECEIVED BY TH E ASSESSEE AND HIS SON FROM VARIOUS SOCIAL GATHERINGS AND ON DIWALI. WITH REGARD TO LONG TERM CAPITAL GAIN ` 1,45,37,695/- IT WAS SUBMITTED THAT THE SAME WAS OFFERED U/S.132(4) OF THE ACT AS INCOME FROM O THER SOURCES AND ALSO DECLARED IN THE RETURN OF INCOME. WITH REGAR D TO THE ALLEGED COMMISSION OF ` 7,26,735/- IT WAS SUBMITTED THAT VIDE LETTER DATED 12.10.2006 HE OFFERED THE SAME AS INCOME. IT WAS, THE REFORE, SUBMITTED THAT THERE WAS NO CONCEALMENT OF INCOME OR FUR NISHING OF INACCURATE PARTICULARS OF SUCH INCOME AND THEREFORE PENAL TY PROCEEDING INITIATED U/S.271(1)(C) BE DROPPED. THE RELIANCE W AS ALSO PLACED CERTAIN DECISIONS. HOWEVER, THE ASSESSING OFFICER DID NOT A CCEPT THE ASSESSEES EXPLANATION. HE OBSERVED THAT THE ASSESSEE HAS ACCEP TED ABOVE ADDITIONS AND DID NOT FILE APPEAL AGAINST THE A SSESSMENT ORDER. HE FURTHER OBSERVED THAT IT IS NOT A CASE OF VOLUNTARY SURRENDER. THE ASSESSING OFFICER AFTER DISTINGUISHING DECISIONS RELIED ON BY THE ASSESSEE HELD THAT THE ASSESSEE HAS FILED INACCURATE PARTICULA RS OF HIS INCOME IN VIEW OF A PROVISIONS OF PARA (A) TO EXPLANA TION 1 OF SECTION 271(1)(C) OF THE ACT AND ACCORDINGLY, HE IMPOSED PENALTY OF ` 48,32,643/- VIDE ORDER DATED 30.06.2008 PASSED U/S. 27 1(1)(C) OF THE ACT. ON APPEAL, THE LEARNED CIT(A) FOLLOWING THE DECISION OF THE HONBLE APEX COURT IN THE DHARAMENDRA TEXTILE PROCESSO RS & ORS. (2008) 14 DTR 114 (SC) AND OTHER DECISIONS WHILE AGREE ING WITH VIEWS OF THE ASSESSING OFFICER, CONFIRMED THE PENALTY IMPOSED BY THE ASSESSING OFFICER. ITA NO.2101/MUM/2009 ASSESSMENT YEAR : 2003-2004 3 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT( A) THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS SU STENANCE OF PENALTY IMPOSED BY THE ASSESSING OFFICER. 4. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSING OFFICER HAS IMPOSED PENALTY U/S.2 71(1)(C) ON ADDITION OF DEPOSITS IN POST OFFICE SAVINGS ACCOUNTS ` 7,565/-, LONG TERM CAPITAL GAIN ` 1,45,37,695/-, ALLEGED PAYMENT OF COMMISSION OF ` 7,36,464/- ON LONG TERM CAPITAL GAIN AND LOW HOUSE HOLD EXPENSES ` 60,000/-. HE FURTHER SUBMITS THAT POST OFFICE DEPOSITS OF ` 7,565/- WHICH IS OUT OF CASH GIFTS RECEIVED BY ASSESSEE AND BY HIS SON FROM THEIR RELATIVES DURING VARIOUS SOCIAL GATHERING AND ON DIWALI. THE ASSESSEE COULD NOT FILE EVIDENCE DUE TO LONG GAP BETWEEN DATE OF DEPOSIT AND THE EXPLANATION ASKED BY THE DEPARTMENT. SINCE IT IS A SMALL AMOUNT AND CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE TWO VIEWS ARE POSSIBLE, THEREFORE, THE PENALTY ON THE SAID AMOUNT OF ADDITION IS NOT LEVIABLE. 5. WITH REGARD TO ADDITION OF LONG TERM CAPITAL GAI N OF ` 1,45,37,695/- HE SUBMITS THAT ON THE SIMILAR FACTS AND CI RCUMSTANCES OF THE CASE THE TRIBUNAL IN AMIT N. SHAH VS. DCIT IN I TA NO.908/M/09 FOR ASSESSMENT YEAR 2003-04 ORDER DATED 24.11.2010 AND IN NAROTTAM M. SHAH VS. DCIT IN ITA NO.907/M/09 FOR ASSESSMENT YEAR 2003-04 ORDER DATED 22.12.2010 HAS DELETED THE PENALTY ON TH E SIMILAR ADDITION, THEREFORE THE PENALTY ON THE SAID AMOUNT I S NOT LEVIABLE. HE ALSO PLACED ON RECORD THE COPY OF THE SAID ORDERS OF THE TRIBUNAL. ITA NO.2101/MUM/2009 ASSESSMENT YEAR : 2003-2004 4 6. HE FURTHER SUBMITS THAT THE TRIBUNAL ON THE SIMILAR ISSUE OF ALLEGED PAYMENT OF COMMISSION OF ` 7,36,464/-, BY THE SAME ORDER (SUPRA), HAS CONFIRMED THE PENALTY, THEREFORE THE ISSUE MAY BE DECIDED ACCORDINGLY. 7. WITH REGARD TO THE ADDITION OF ` 60,000/- ON LOW HOUSE HOLD EXPENSES HE SUBMITS THAT THE ASSESSING OFFICER IN THE ASSESSMEN T ORDER HAS NO WHERE DISCUSSED THE ABOVE ISSUE AND SECONDLY T HE ADDITION HAS BEEN MADE ON ESTIMATE BASIS, THEREFORE THE PENALTY IS NOT LEVIABLE. HE THEREFORE, SUBMITS THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND SUSTAINED BY THE LEARNED CIT(A) BE DELETE D. 8. ON THE OTHER HAND, THE LEARNED DR SUPPORTS THE OR DER OF THE ASSESSING OFFICER AND LEARNED CIT(A). 9. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE F IND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT NO APPEAL HAS BEEN FILED AGAINST THE ASSESSMENT ORDER PASSED U/S.153A R.W.S. 143(3) OF THE ACT. WE FURTHER FIND THAT THE ASSESSING OFFICER HAS IMPOSED PENALTY ON ALL THE ADDITIONS I.E. DEPOSIT OF ` 7,565/- IN THE POST OFFICE SAVING BANK ACCOUNT AS UNEXPLAINED INVESTMEN T U/S.69, LONG TERM CAPITAL GAINS ` 1,45,37,695/-, UNDISCLOSED COMMISSION PAYMENT ON LONG TERM CAPITAL GAINS ` 7,36,464/- AND LOW HOUSE HOLD EXPENSES OF ` 60,000/-. WE FIND MERIT IN THE PLEA OF THE LEARN ED COUNSEL OF THE ASSESSEE THAT THE TRIBUNAL IN THE CASE OF AM IT N. SHAH (SUPRA) ON THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE H AS DELETED THE PENALTY ON THE SIMILAR ADDITION OF LONG TERM CAP ITAL GAIN VIDE ITA NO.2101/MUM/2009 ASSESSMENT YEAR : 2003-2004 5 FINDING RECORDED IN PARA 9 TO 14 OF THE ORDER WHICH A RE REPRODUCED AS UNDER: 9. THE ASSESSEE HAD ORIGINALLY FILED ITS RETURN U/S . 139(1) ON 19/2/2003. IN THIS RETURN HE CLAIMED TO HAVE EARNE D LONG TERM CAPITAL GAIN AND FROM THAT GAIN HE CLAIMED RELIEF U /S. 54EC. SEARCH AND SEIZURE OPERATION HAS TAKEN PLACE ON 24/01/2006 ON THIS GROUP. A NOTICE U/S. 153A WAS ISSUED ON 10/8/2006. IN RESPONSE THERETO, THE ASSESSEE FILED A RETURN OF INCOME ON 1 5/09/2006 DECLARING A TOTAL INCOME OF ` 57,01,780/-. THIS WAS ACCOMPANIED BY A COMPUTATION OF INCOME, COPY OF THE AUDIT REPOR T IN FORM 3CB AND 3 CD, AUDITED TRADING AND PROFIT & LOSS ACCOUN T, BALANCE SHEET ANNEXURE ETC. 143(2) NOTICE DATED 21/9/2006 WAS ISS UED AND ULTIMATELY THE ASSESSMENT ORDER US/ 143(3) READ WIT H SECTION 153A WAS PASSED ON 24 TH DEC. 2007. THE ONLY ADDITION THAT IS MADE IN THIS CASE IS AN AMOUNT OF ` 2,59,829/- BEING COMMISSION OF 5% ON LONG TERM CAPITAL GAINS. THIS ALSO WAS OFFERED BY THE ASSESSEE IN THE FORM OF A LETTER WITH A REQUEST THAT IT SHOULD BE CONSIDERED AS A REVISED RETURN. AT PARA 11 PAGE 5 OF THE ASSESSM ENT ORDER, THE AO RECORDED AS FOLLOWS: AS THE ASSESSEE HAS OFFERED THE SALE PROCEEDS OF S HARES OF ABOVE PETTY STOCK COMPANY OF ` 51,96,586/- AND COMMISSION OF ` 2,59,829/- AS INCOME FROM OTHER SOURCES, THE ABOVE AMOUNTS ARE TREATED AS INCOME FROM OTHER SOURCES AND TAXED ACCO RDINGLY. 10. THE AO INITIATED PENALTY PROCEEDINGS U/S. 271( 1)(C) ON THE GROUND THAT THE ASSESSEE HAD NOT DISCLOSED HIS CORR ECT INCOME IN THE RETURN FILED ORIGINALLY AND HAD FURNISHED INACC URATE PARTICULARS OF INCOME. 11. THE AO IN HIS ORDER DATED 26/06/2008 PASSED U/ S. 271(1)(C), LEVIED THE PENALTY ON THE GROUND THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. PARA 5 OF PENALT Y ORDER READS AS FOLLOWS: FOR THE REASONS MENTIONED ABOVE, I AM SATISFIED TH AT THE ASSESSEE FILED INACCURATE PARTICULARS OF HIS INCOME . THE ASSESSEES CASE FALLS UNDER THE PROVISIONS OF PARA (A) OF EXPL ANATION (1) OF SECTION 271(1)(C). THIS IS A FIT CASE FOR LEVY OF PENALTY U/S. 271(1)(C). 12. IN OUR HUMBLE OPINION, THE PENALTY IN QUESTION IS LEVIED ONLY WITH REFERENCE TO THE RETURN OF INCOME FILED U/S. 1 53A. THE AO WHILE PASSING AN ORDER U/S. 143(3), DID NOT HOLD TH AT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS IN THE RETURN FILED U/S. 153A ON 15/09/2006 EXCEPT FOR AN AMOUNT OF ` 2,59,829/-. THUS TO HOLD THAT THE ASSESSEE HAS FURNISHED INACCURATE PAR TICULARS WITH REFERENCE TO THE RETURN OF INCOME BASED ON WHICH PE NALTY U/S. ITA NO.2101/MUM/2009 ASSESSMENT YEAR : 2003-2004 6 271(1)(C) HAS BEEN INITIATED, WOULD BE BAD IN LAW E XCEPT TO THE EXTENT OF ` 5,59,829/-. THE ORIGINAL RETURN FILED U/S. 139(1) IS NOT THE BASIS ON WHICH THE ASSESSMENT HAS BEEN COMPLETE D NOR IS IT THE BASIS ON WHICH THE PENALTY U/S. 271(1)(C) HAS B EEN INITIATED. THE RETURN FILED U/S. 153A CANNOT BE CONSIDERED A R EVISED RETURN. THUS AS THERE IS NO VARIATION BETWEEN THE RETURNED INCOME AND THE ASSESSED INCOME, EXCEPT TO THE TURN OF ` 2,59,821/-, WE HOLD THAT LEVYING PENALTY U/S. 271(1)(C) ON THE AMOUNT OF ` 51,96,559/- IS BAD IN LAW. AS FAR AS THE LEVY OF PENALTY ON COMMI SSION OF ` 2,59,829/- IS CONCERNED, THE SAME HAS NOT BEEN FURN ISHED IN THE RETURN OF INCOME AND HENCE TANTAMOUNT TO FURNISHING OF INACCURATE PARTICULARS AND WE UPHOLD THE LEVY OF PENALTY ON TH E SAME. 13. COMING TO THE ARGUMENT OF THE ASSESSEE ON THE I SSUE OF APPLICABILITY OF EXPLANATION 5 TO SECTION 271(1)(C) , WE FIND THAT THE SAME DOES NOT APPLY TO THIS CASE FOR THE REASON THA T THE STATEMENT U/S. 132(4) DOES NOT REFER TO ANY MONEYS/BULLION/J EWELLERY OR OTHER VALUABLE ARTICLE OR THING. THE DECLARATION S TATE THAT THE LONG TERM CAPITAL GAIN CLAIMED BY THE ASSESSEE WAS NON-G ENUINE. CLAUSE (2) OF EXPLANATION 5 READS AS FOLLOWS: (2) HE, IN THE COURSE OF SEARCH, MAKES A STATEMEN T UNDER SUB- SECTION(4) OF SECTION 132 THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND IN HIS POSSES SION OR UNDER HIS CONTROL, HAS BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED SO FAR IN HIS RETURN OF INCOME TO BE FURN ISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN SUB-SECTION (1) OF SECT ION 139 AND ALSO SPECIFIES IN THE STATEMENT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX, TOGETHER WITH INTERE ST, IF ANY, IN RESPECT OF SUCH INCOME. AS THE DECLARATION IS NOT IN CONNECTION WITH MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND IN THE CONTROL OF THE ASSESSEE, IN OUR HUMBLE OPINION, THE IMMUNITY C ANNOT E EXTENDED. IN VIEW OF THE ABOVE FINDINGS, WE NEED N OT DISCUSS THE OTHER CASE LAWS RELIED UPON BY THE ASSESSEE AS THE SAME WOULD BE AN ACADEMIC EXERCISE. 14. IN THE RESULT, WE PARTLY CONFIRM THE PENALTY LE VIED U/S. 271(1)(C) AND HOLD THAT THE PENALTY ON AN AMOUNT OF ` 51,25,144/- IS BAD IN LAW AND HENCE DELETED AND THAT ON AN AMOU NT OF ` 2,59,829/- IS HEREBY CONFIRMED. 10. THE ABOVE ORDER OF THE TRIBUNAL HAS BEEN FOLLOW ED IN THE CASE OF NAROTTAM M. SHAH (SUPRA) WHEREIN THE TRIBUNAL ON THE SIMILAR FACTS ITA NO.2101/MUM/2009 ASSESSMENT YEAR : 2003-2004 7 AND CIRCUMSTANCES OF THE CASE HAS DELETED THE PENALTY IMP OSED U/S.271(1)(C) OF THE ACT. 11. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGH T ON RECORD BY THE REVENUE WE RESPECTFULLY FOLLOWING THE CONSISTENT VIEW OF THE TRIBUNAL HOLD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIE D IN IMPOSING PENALTY ON LONG TERM CAPITAL GAIN OF ` 1,45,37,695/- AND ACCORDINGLY THE PENALTY ON SAID AMOUNT IS DELETED. 12. WITH REGARD TO THE IMPOSITION OF PENALTY ON PAYM ENT OF COMMISSION OF ` 7,36,464/- ON LONG TERM CAPITAL GAIN WE FIND THAT ON THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE THE TRIBUNAL IN THE ABOVE NOTED CASE HAS CONFIRMED THE PENALTY, THEREFORE F OLLOWING THE SAME VIEW WE CONFIRM THE PENALTY ON THE AMOUNT OF COM MISSION PAID AT ` 7,36,464/- ON LONG TERM CAPITAL GAIN AND TO THIS EX TENT THE ORDER OF THE ASSESSING OFFICER IS UPHELD. 13. WITH REGARD TO THE IMPOSITION OF PENALTY ON UNEX PLAINED DEPOSIT OF ` 7,565/- IN POST OFFICE SAVING BANK ACCOUNT AND ON THE ADDITION OF ` 60,000/- FOR LOW HOUSE HOLD EXPENSES WE FIND THAT THE ASSESSING OFFICER HAS NOT ACCEPTED THE ASSESSEES EXPLANATION THAT THE DEPOSIT IN POST OFFICE SAVING BANK ACCOUNT IS OUT OF CASH GIFT RECE IVED FORM RELATIVES ON VARIOUS SOCIAL GATHERING AND ON DIWALI. SI MILARLY, ON ADDITION OF LOW HOUSE HOLD EXPENSES THERE IS NO MATERIA L ON RECORD TO SHOW THE BASIS OF ADDITION OF ` 60,000/-. MERELY BECAUSE THE ASSESSEES EXPLANATION HAS NOT BEEN ACCEPTED IT DOES NOT MEA N THAT THE ASSESSEE HAS CONCEALED HIS INCOME. THIS BEING SO AND KEE PING IN VIEW THE RATIO OF DECISION OF HONBLE APEX COURT IN CI T VS. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 322 ITR 158(SC) WHEREI N THEIR ITA NO.2101/MUM/2009 ASSESSMENT YEAR : 2003-2004 8 LORDSHIPS, AFTER CONSIDERING VARIOUS DECISIONS INCLUDING DIL IP N. SHROFF VS. JCIT (2007) 291 ITR 519(SC) AND UNION OF INDIA V S. DHARAMENDRA TEXTILE PROCESSORS (2008) 306 ITR 277(SC) HAVE OBSERVED AND HELD (PAGE 158 HEAD NOTES) AS UNDER: A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME- TAX ACT, 1961, SUGGESTS THAT IN ORDER TO BE COVERED BY IT, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURA TE PARTICULARS OF HIS INCOME. THE MEANING OF THE WORD PARTICULAR S USED IN SECTION 271(1)(C) WOULD EMBRACE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND T O BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY O F FURNISHING INACCURATE PARTICULARS IN ORDER TO EXPOSE THE ASSES SEE TO PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISIO N, THE PENALTY PROVISION CANNOT BE INVOKED. BY NO STRETCH OF IMAG INATION CAN MAKING AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHIN G WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICU LARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACC URATE, THE LIABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DET AILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIE D BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACC URATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTI CULARS 14. RESPECTFULLY FOLLOWING THE RATIO OF THE ABOVE DECI SIONS WE ARE OF THE VIEW THAT THE ASSESSEE IS NOT LIABLE TO PENALTY ON T HE ADDITION ON POST OFFICE BANK DEPOSIT ` 7,565/- AND LOW HOUSE HOLD EXPENSES ` 60,000/-. ACCORDINGLY WE WHILE CONFIRMING THE PENAL TY ON THE ADDITION OF PAYMENT OF COMMISSION ` 7,36,464/- ON LONG TERM CAPITAL GAINS DELETE THE PENALTY ON ALL OTHER ADDITIONS AS AB OVE. THE ASSESSING OFFICER IS DIRECTED TO ALLOW DUE RELIEF TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTLY ALL OWED. ITA NO.2101/MUM/2009 ASSESSMENT YEAR : 2003-2004 9 15. IN THE RESULT, ASSESSEES APPEAL STANDS PARTLY ALLOWE D. ORDER PRONOUNCED ON THIS 9 TH DAY OF FEBRUARY, 2011. SD/- (T.R. SOOD) ACCOUNTANT MEMBER SD/- (D.K. AGARWAL) JUDICIAL MEMBER MUMBAI, DATED 9 TH FEBRUARY, 2011. JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- , MUM BAI 4. COMMISSIONER OF INCOME TAX, CITY- , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH , MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI