Suresh Dutt Malhotra, Panipat V. ACIT, Panipat

ITA 2575/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7402 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 01-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G JOHNSON
• Assessee Lawyers: K SAMPATH ADV SHRI V RAJKUMAR
• Keywords: Capital asset; Difference of opinion; Onus to prove
• Section: 271(1)(c); 54B; 2(14); 27

Judgement Text

ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI G.D.AGRAWAL, HONBLE VICE PRESIDENT & SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.2575/DEL/2015 ASSESSMENT YEAR: 2007-08 SURESH DUTT MALHOTRA, 590-REVENUE, MODEL TOWN, PANIPAT. (PAN: AISPM4484G) VS ASSTT. COMMISSIONER OF INCOME TAX, PANIPAT. APPELLANT RESPONDENT ASSESSEE BY : SHRI K. SAMPATH, AD V., SHRI V. RAJKUMAR, ADV. REVENUE BY : SHRI G. JOHNSON, SR. DR ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF THE LD. CIT (APPEALS)-ROHTAK AND PERTAINS TO ASSESSMENT YEAR 2007-08 WHEREIN, VIDE THE IMPUGNED ORDER, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS CONFIRMED THE IMPOSITION OF PENALTY AMOUNTING TO RS. 93,97,840/- IMPOSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED 'THE ACT'). DATE OF HEARING 11.10.2018 DATE OF PRONOUNCEMENT 09.01.2019 ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 2 2.0 BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED DECLARING AN INCOME OF RS. 31,74,010/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTIC ED THAT THERE WAS A DEPOSIT OF RS. 1.40 CRORE IN THE BANK ACCOUNT OF THE ASSESSEE WITH THE PUNJAB NATIONAL BANK (PNB), NEW D ELHI AND ANOTHER DEPOSIT OF RS. 6,13,81,250/- IN PNB, PANIPA T. IT WAS EXPLAINED TO THE ASSESSING OFFICER THAT THESE DEPOS ITS PERTAINED TO SALE PROCEEDS OF THE AGRICULTURAL LAND SOLD BY T HE ASSESSEE. THE ASSESSEE FILED COPY OF SALE DEED WHICH SHOWED S ALE OF TOTAL LAND MEASURING 11 ACRES TO M/S SUTLUJ REAL ESTATE ( P) LTD. AND M/S KANCHANJUNGA REALTORS (P) LTD. ON 24.04.2006 FO R A CONSIDERATION OF RS. 8,61,50,000/-. THE LAND WAS S AID TO BE SITUATED IN VILLAGE AZIZULLAPUR, TEHSIL PANIPAT. I T WAS THE ASSESSEES CLAIM THAT THE LAND SOLD WAS SITUATED BE YOND 8 KMS FROM THE MUNICIPAL LIMITS AND AS SUCH IT WAS NOT A CAPITAL ASSET IN TERMS OF SECTION 2(14) (III) OF THE ACT. IN SUP PORT, THE ASSESSEE FURNISHED A COPY OF LETTER ISSUED BY TEHSILDAR, PAN IPAT. HOWEVER, THE ASSESSING OFFICER, THROUGH HIS OFFICE, COLLECTE D INFORMATION OF ANOTHER PIECE OF LAND SITUATED IN THE SAME VILLAGE IN THE CASE OF ANOTHER ASSESSEE FROM THE OFFICE OF THE DISTRICT TO WN PLANNING OFFICER, PANIPAT WHO, AS PER LETTER NO. 2193 DATED 31.12.2007, ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 3 INFORMED THAT THE DISTANCE OF THE LAND WAS APPROXIM ATELY 1.8 KMS FROM THE EXTENDED MUNICIPAL BOUNDARY OF PANIPAT . THE ASSESSING OFFICER WENT ON TO HOLD THAT THE LAND SOL D BY THE ASSESSEE WAS A CAPITAL ASSET WITHIN THE MEANING O F SECTION 2(14)(II) OF THE ACT AND, THEREFORE, THE ASSESSEE W AS LIABLE TO CAPITAL GAIN TAX. 2.1 IT WAS FURTHER EXPLAINED BEFORE THE ASSESSING O FFICER THAT THE 11 ACRES OF LAND WAS ACQUIRED FROM THE ASSESSEE S FATHER THROUGH A COURT DECREE IN THE MONTH OF MAY, 1988 AN D WAS SOLD FOR A CONSIDERATION OF RS. 8,61,50,000/-, AGAINST W HICH THE ASSESSEE HAD MADE INVESTMENT IN PURCHASE OF LAND WO RTH RS. 3,85,70,000/- BETWEEN 21.8.2006 AND 4.4.2007 AND FU RTHER PURCHASED LAND WORTH RS. 1,07,21,900/- ON 15.11.200 7 AND 22.4.2008 SO AS TO CLAIM BENEFIT OF DEDUCTION U/S 5 4B OF THE ACT. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAD INVESTE D A SUM OF RS. 10,00,000/- ON RECONSTRUCTION OF ITS RESIDENTIAL HO USE AT PANIPAT WHICH WAS ELIGIBLE FOR DEDUCTION U/S 54F(1) OF THE ACT. THE ASSESSING OFFICER ACCEPTED THE ASSESSEES CLAIM U/S 54B WITH RESPECT TO THE INVESTMENT OF RS. 3,85,70,800/- MADE IN PURCHASE OF LAND BEFORE 31.07.2007 I.E. THE DUE DATE OF FILI NG THE RETURN OF INCOME. THE CLAIM OF EXEMPTION OF THE REMAINING IN VESTMENT IN ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 4 LAND PURCHASE OF RS. 1,07,21,900/- WAS DISALLOWED F OR THE REASON THAT THE SAID LAND WAS PURCHASED SUBSEQUENT TO THE DUE DATE OF FILING OF RETURN OF INCOME AND FURTHER THE ASSESSEE ALSO DID NOT DEPOSIT THE BALANCE AMOUNT IN BANK UNDER THE CAPIT AL GAIN ACCOUNT SCHEME. THE EXEMPTION OF RS. 10,00,000/- C LAIMED U/S 54F(1) WAS ALSO DISALLOWED ON THE GROUND THAT THE R ECONSTRUCTION HAD BEEN CARRIED OUT ON PLOT BEFORE ONE YEAR FROM T HE DATE OF TRANSFER OF THE ORIGINAL ASSET. 2.2 THE ASSESSEE PREFERRED AN APPEAL AGAINST THE IM PUGNED ORDER WHICH WAS UPHELD BY THE LD. COMMISSIONER OF I NCOME TAX (APPEALS). THE ASSESSEES APPEAL BEFORE THE ITAT W AS ALSO DISMISSED VIDE ORDER DATED 10.4.2017 IN ITA NO. 347 7/DEL/2012. 2.3 MEANWHILE, THE ASSESSING OFFICER IMPOSED PENALT Y OF RS. 93,97,840/- U/S 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THIS PENALTY WAS CONFIRMED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) VIDE IMPUGNED ORDER DATED 24 TH APRIL, 2017. THE ASSESSEE IS NOW BEFORE THE ITAT AGAINST THE SAID PENALTY. 3.0 THE LD. AR DREW OUR ATTENTION TO THE CERTIFICAT E RECEIVED FROM THE TEHSILDAR MENTIONING THAT THE DISTANCE OF THE IMPUGNED ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 5 LAND FROM THE MUNICIPAL LIMITS OF PANIPAT WAS MORE THAN 8 KMS. IT WAS SUBMITTED THAT THE ASSESSEE HAD MADE A CLAIM OF THE LAND NOT FALLING UNDER THE DEFINITION OF CAPITAL ASSET A ND, THEREFORE, NOT BEING EXIGIBLE TO THE CAPITAL GAINS TAX ON THE BASI S OF THIS CERTIFICATE ONLY. IT WAS FURTHER SUBMITTED THAT TH E CERTIFICATE OF THE DISTRICT TOWN PLANNING OFFICER, BASED ON WHICH THE ASSESSING OFFICER HAD MADE THE DISALLOWANCE, MENTIONED THAT T HE IMPUGNED LAND WAS 1.8 KMS FROM THE EXTENDED MUNICIPAL LIMITS AND, THUS, THERE WAS A DIFFERENCE OF OPINION BETWEEN THE TEHSI LDAR AND THE DISTRICT TOWN PLANNING OFFICER. HE ALSO DREW OUR A TTENTION TO COPY OF JAMABANDHI OF THE IMPUGNED LAND PLACED ON RECORD AND POINTED OUT THAT AS PER THE JAMABANDHI, THE NATURE OF LAND WAS AGRICULTURAL. THE LD. AR FURTHER SUBMITTED THAT TH E PENALTY HAD BEEN WRONGLY IMPOSED AND WRONGLY UPHELD BY THE LOWE R AUTHORITIES FOR FURNISHING INACCURATE PARTICULARS O F INCOME ALTHOUGH IT WAS VERY MUCH EVIDENT THAT IT WAS NOT A CASE OF FILING OF INACCURATE PARTICULARS OF INCOME. IT WAS SUBMIT TED THAT ALL THE RELEVANT DETAILS WERE FILED BEFORE THE ASSESSING OF FICER AND NO INACCURATE PARTICULARS HAD BEEN FURNISHED BY THE AS SESSEE. IT WAS SUBMITTED THAT IT IS A DIFFERENT ISSUE THAT THE CLAIM OF THE ASSESSEE WAS NOT ACCEPTED BECAUSE THE ASSESSEE RELI ED ON ONE ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 6 CERTIFICATE FROM THE TEHSILDAR WHEREAS THE ASSESSIN G OFFICER PLACED RELIANCE ON ANOTHER CERTIFICATE FROM THE DIS TRICT TOWN PLANNING OFFICER BUT THIS DID NOT TANTAMOUNT TO FUR NISHING OF INACCURATE PARTICULARS OF INCOME. IT WAS SUBMITTED THAT IT IS JUST A CASE WHERE THE CLAIM OF THE ASSESSEE WAS NOT ACCE PTED BUT BY NO STRETCH OF IMAGINATION COULD IT BE SAID THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME. IT WAS PRAYED THAT THE PENALTY IMPOSED MAY BE DELETED. 4.0 IN RESPONSE, THE LD. SR. DR PLACED EXTENSIVE RE LIANCE ON THE CONCURRENT FINDING OF BOTH THE LOWER AUTHORITIES AN D VEHEMENTLY ARGUED THAT THE ASSESSEE HAD FURNISHED INACCURATE P ARTICULARS IN SO FAR AS THE CERTIFICATE OF TEHSILDAR WAS INCORREC T. IT WAS PRAYED THAT THE PENALTY DESERVED TO BE UPHELD. 5.0 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE HONBLE SUPREME COURT, IN THE CASE OF HINDUSTAN STEEL LTD. V. STATE OF ORISSA 83 ITR 26, HAD LAID DOWN THE POSITION OF LAW BY HOLDING THAT THE ASSESS ING OFFICER IS NOT BOUND TO LEVY PENALTY AUTOMATICALLY SIMPLY BECA USE THE QUANTUM ADDITION HAS BEEN SUSTAINED. ALSO IN CASE O F CIT V. KHODAY ESWARA (83 ITR 369) (SC), INCIDENTALLY REPOR TED IN SAME ITR VOLUME, IT IS HELD THAT PENALTY CANNOT BE LEVIE D SOLELY ON ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 7 BASIS OF REASONS GIVEN IN ORIGINAL ORDER OF ASSESSM ENT. THE HONBLE SUPREME COURT HAS RECENTLY REITERATED THE L AW IN CASE OF DILIP N. SHROFF V. JT. CIT [2007] 291 ITR 519 BY HO LDING IN PARA 62 THAT FINDING IN ASSESSMENT PROCEEDINGS CANNOT AU TOMATICALLY BE ADOPTED IN PENALTY PROCEEDINGS AND THE AUTHORITI ES HAVE TO CONSIDER THE MATTER AFRESH FROM DIFFERENT ANGLE. T HE 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 CONCEALED THE AMOUNT OR FURNISHED INACCURATE PARTICULARS AND THIS ONUS IS TO BE DISCHARGED BY THE DEPARTMENT. WHILE CONSIDER ING WHETHER THE ASSESSEE HAS BEEN ABLE TO DISCHARGE HIS BURDEN THE ASSESSING OFFICER SHOULD NOT BEGIN WITH THE PRESUMPTION THAT HE IS GUILTY. SINCE THE BURDEN OF PROOF IN PENALTY PROCEEDINGS VA RIES FROM THAT IN THE ASSESSMENT PROCEEDINGS, A FINDING IN THE ASS ESSMENT PROCEEDINGS THAT A PARTICULAR RECEIPT IS INCOME CAN NOT AUTOMATICALLY BE ADOPTED, THOUGH A FINDING IN THE A SSESSMENT PROCEEDINGS CONSTITUTES GOOD EVIDENCE IN THE PENALT Y PROCEEDINGS. IN THE PENALTY PROCEEDINGS THE AUTHORITIES MUST CON SIDER THE MATTER AFRESH AS THE QUESTION HAS TO BE CONSIDERED FROM A DIFFERENT ANGLE. IT IS IMPORTANT TO KEEP IN MIND TH E FUNDAMENTAL ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 8 LEGAL PROPOSITION THAT ASSESSMENT PROCEEDINGS ARE N OT CONCLUSIVE. ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT. FINDINGS IN ASSESSMENT PROCEEDINGS DO NT OPERATE AS RES JUDICATA IN PENALTY PROCEEDINGS. FOR THIS PR OPOSITION RELIANCE IS PLACED ON THE DECISION IN CIT VS. DHARA MCHAND L. SHAH (1993) 204 ITR 462 (BOM). IN VIJAY POWER GENER ATORS LTD VS. ITO (2008)6 DTR 64 (DEL) IT WAS HELD THAT IT IS WELL SETTLED THAT THOUGH THEY CONSTITUTE GOOD EVIDENCE DO NOT CO NSTITUTE CONCLUSIVE EVIDENCE IN PENALTY PROCEEDINGS. DURING PENALTY PROCEEDINGS, THERE HAS TO BE REAPPRAISAL OF THE VER Y SAME MATERIAL ON THE BASIS OF WHICH THE ADDITION WAS MAD E 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 MATERIAL SHOULD ALSO BE EXAMINED IN AN ATTE MPT TO ASCERTAIN WHETHER THE ASSESSEE CONCEALED HIS INCOME OR FURNISHED INACCURATE PARTICULARS. THUS, UNDER PENAL TY PROCEEDINGS ASSESSEE CAN DISCHARGE HIS BURDEN BY RE LYING ON THE SAME MATERIAL ON THE BASIS OF WHICH ASSESSMENT IS M ADE BY CONTENDING THAT ALL NECESSARY DISCLOSURES WERE MADE AND THAT ON THE BASIS OF MATERIAL DISCLOSED THERE CANNOT BE A C ASE OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS OF ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 9 INCOME. FURTHER IF THERE IS ANY MATERIAL OR ADDITIO NAL EVIDENCE WHICH WAS NOT PRODUCED DURING ASSESSMENT PROCEEDING S SAME CAN BE PRODUCED IN PENALTY PROCEEDINGS AS BOTH ASSE SSMENT AND PENALTY PROCEEDINGS ARE DISTINCT AND SEPARATE. IN C IT VS. M/S SIDHARTHA ENTERPRISES (2009) 184 TAXMAN 460 (P & H) (HC) IT WAS HELD THAT THE JUDGMENT IN DHARMENDRA TEXTILE CANNOT BE READ AS LAYING DOWN THAT IN EVERY CASE WHERE PARTICULARS OF INCOME ARE INACCURATE, PENALTY MUST FOLLOW. EVEN SO, THE CONCE PT OF PENALTY HAS NOT UNDERGONE CHANGE BY VIRTUE OF THE SAID JUDG MENT. PENALTY IS IMPOSED ONLY WHEN THERE IS SOME ELEMENT OF DELIBERATE DEFAULT. 5.1 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 COURT WHILE INTERPRETING THE PROVISIONS OF SECTION 271(1)( C ) OF THE ACT, HAS HELD THAT A GLANCE AT THE SAID PR OVISION WOULD SUGGEST THAT IN ORDER TO BE COVERED BY IT, TH ERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURA TE 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 INC OME, NOR WAS IT ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 10 THE CASE OF THE REVENUE EITHER. HOWEVER, THE COUNSE L FOR THE REVENUE SUGGESTED THAT BY MAKING AN INCORRECT CLAIM FOR THE EXPENDITURE ON INTEREST, THE ASSESSEE HAD FURNISHED 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, TH E ASSESSEE 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 T HE SEPARATE ITEMS OF AN ACCOUNT. THEREFORE, THE WORD 'PARTICULAR' USE D IN SECTION 271(1)( C ) WOULD EMBRACE THE MEANING OF THE DETAILS OF THE C LAIM MADE. THE COURT FURTHER OBSERVED THAT IN WEBSTER'S DICTIONARY, THE WORD 'INACCURATE' HAS BEEN DEFINED AS: 'NOT ACCURATE, NOT EXACT OR CORRECT; NOT ACCORDING TO TR UTH; ERRONEOUS; AS AN INACCURATE STATEMENT, COPY OR TRANSCRIPT.' TH E COURT OBSERVED THAT READING THE WORDS 'INACCURATE' AND 'P ARTICULARS' IN CONJUNCTION, THEY MUST MEAN THE DETAILS SUPPLIED IN THE RETURN, WHICH ARE NOT ACCURATE, NOT EXACT OR CORRECT, NOT A CCORDING 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 INCOR RECT AND ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 11 ACCORDINGLY, HELD THAT, PRIMA FACIE , THE ASSESSEE COULD NOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. THE CO URT REPELLED THE CONTENTION RAISED BY THE COUNSEL FOR THE REVENUE TH AT 'SUBMITTING AN INCORRECT CLAIM IN LAW FOR THE EXPENDITURE ON IN TEREST WOULD AMOUNT TO GIVING INACCURATE PARTICULARS OF SUCH INC OME'. 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 CANNOT BE INVOKED. BY ANY STR ETCH OF IMAGINATION, MAKING AN INCORRECT CLAIM IN LAW CANNO T 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 EVERYTHING WOULD DEPEND UPON THE RETURN FILED BECAUSE THAT IS THE ONLY DOCUMENT, WHERE THE ASSESSEE CAN FURNISH THE PARTIC ULARS OF HIS INCOME. WITH REGARD TO THE PROVISIONS OF SECTION 27 1(1)(C ) OF THE ACT PERTAINING TO PENALTY, THE HONBLE APEX COURT H AS AUTHORITATIVELY LAID DOWN THAT MAKING OF A CLAIM BY THE ASSESSEE WHICH IS NOT SUSTAINABLE WILL NOT TANTAMOUNT TO FUR NISHING INACCURATE PARTICULARS. IN CIT VS. RELIANCE PETROPR ODUCTS PVT. LTD. 322 ITR 158 (SC), THE HONBLE APEX COURT HAS HELD A S FOLLOWS: ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 12 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 FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE PRESENT IS NOT A CASE OF CONCEALMENT OF INCOME. THAT IS NOT TH E CASE OF THE REVENUE EITHER. HOWEVER, THE LD. COUNSEL FOR TH E REVENUE SUGGESTED THAT BY MAKING INCORRECT CLAIM FOR THE EX PENDITURE ON INTEREST, THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. AS PER LAW LEXICON, THE MEANING OF THE W ORD 'PARTICULAR' IS A DETAIL OR DETAILS (IN PLURAL SENS E); THE DETAILS OF A CLAIM, OR THE SEPARATE ITEMS OF AN ACCOUNT. TH EREFORE, THE WORD 'PARTICULARS' USED IN THE SECTION 271 (1) (C) WOULD EMBRACE THE MEANING OF THE DETAILS OF THE CLAIM MAD E. IT IS AN ADMITTED POSITION IN THE PRESENT CASE THAT NO INFOR MATION GIVEN IN THE RETURN WAS FOUND TO BE INCORRECT OR IN ACCURATE. IT IS NOT AS IF ANY STATEMENT MADE OR ANY DETAIL SUPPL IED WAS FOUND TO BE FACTUALLY INCORRECT. HENCE, AT LEAST, P RIMA FACIE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING IN ACCURATE PARTICULARS. THE LEARNED COUNSEL ARGUED THAT 'SUBMI TTING AN INCORRECT CLAIM IN LAW FOR THE EXPENDITURE ON INTER EST WOULD AMOUNT TO GIVING INACCURATE PARTICULARS OF SUCH INC OME.' WE DO NOT THINK THAT SUCH CAN BE THE INTERPRETATION OF THE CONCERNED WORDS. THE WORDS ARE PLAIN AND SIMPLE. 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 I NCORRECT CLAIM IN LAW CANNOT TANTAMOUNT TO FURNISHING INACCU RATE PARTICULARS. ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 13 5.2 WE ALSO NOTE THAT AN IDENTICAL ISSUE HAD COME U P BEFORE THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. RAJEEV BHATARA REPORTED IN 360 ITR 121 (P&H) WHEREI N IT WAS THE ASSESSEES PLEA BEFORE THE ASSESSING OFFICER THAT N O CAPITAL GAIN TAX WAS IMPOSABLE IN HIS CASE AS THE PROPERTY WHICH HE HAD SOLD WAS SITUATED BEYOND 8 KMS FROM THE MUNICIPAL LIMITS OF PANIPAT. AFTER COLLECTING INFORMATION REGARDING THE DISTANCE FROM VARIOUS AUTHORITIES, THE ASSESSING OFFICER CAME TO THE CONC LUSION THAT THE PROPERTY WAS SITUATED WITHIN 8 KMS OF MUNICIPAL LIM ITS OF PANIPAT. CONSEQUENTLY, THE ASSESSING OFFICER REJEC TED THE ASSESSEES CLAIM AND BROUGHT CAPITAL GAIN TO TAX AN D ALSO LEVIED PENALTY. WHILE ALLOWING THE CLAIM OF THE ASSESSEE, THE ITAT NOTED THAT THE ASSESSEE HAD FURNISHED A CERTIFICATE FROM THE SUB DIVISIONAL ENGINEER WHEREIN IT WAS SPECIFIED THAT T HE DISTANCE FROM THE PANIPAT MUNICIPAL BOARD TO THE VILLAGE WHE RE THE IMPUGNED LAND WAS SITUATED WAS 8.2 KMS. IT WAS ALS O NOTED BY THE TRIBUNAL THAT THERE WERE VARIOUS CERTIFICATES W HEREIN DIFFERENT DISTANCES HAD BEEN MENTIONED. AFTER CONSIDERING TH E MATTER, THE ITAT CAME TO THE CONCLUSION THAT THERE WAS NO INTEN TION ON THE PART OF THE ASSESSEE TO FURNISH INACCURATE PARTICUL ARS OF INCOME. ON DEPARTMENTS APPEAL, THE HONBLE PUNJAB & HARYAN A HIGH ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 14 COURT HELD THAT THE ORDER OF THE TRIBUNAL WAS JUSTI FIED. IN THE PRESENT CASE ALSO, THE FACTS ARE IDENTICAL INASMUCH AS THE ASSESSEE HAS RELIED ON A CERTIFICATE ISSUED BY THE TEHSILDAR WHICH MENTIONS THAT THE IMPUGNED LAND WAS BEYOND 8 KMS OF THE MUNICIPAL LIMITS OF PANIPAT WHEREAS THE ASSESSING O FFICER HAS RELIED ON ANOTHER CERTIFICATE FROM THE DISTRICT TOW N PLANNING OFFICER WHICH MEANS THAT THE DISTANCE WAS LESS THAN 8 KMS. HOWEVER, IN SUCH CIRCUMSTANCES, IT CANNOT BE SAID T HAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF IN COME AND RESPECTFULLY FOLLOWING THE RATIO OF THE VARIOUS JUD GEMENTS AS QUOTED BY US IN THE PRECEDING PARAGRAPHS, WE ARE OF THE CONSIDERED OPINION THAT THIS CASE IS NOT A FIT CASE FOR IMPOSITION OF PENALTY U/S 271(1)(C) FOR FURNISHING INACCURATE PARTICULARS OF INCOME AS A CASE FOR FURNISHING OF INACCURATE PARTI CULARS OF INCOME IS NOT MADE OUT. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND DI RECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED PENALTY. 6.0 IN THE FINAL RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ITA NO. 2575/DEL/2015 ASSESSMENT YEAR 2007-08 15 ORDER PRONOUNCED IN THE OPEN COURT ON 09.01.2019 . SD/- SD/- (G.D.AGRAWAL) (SUDHANSHU SRIVAST AVA) VICE PRESIDENT JUDICIAL MEM BER DATED: 09.01.2019 GS COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSTT. REGISTRAR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER