Smt. Gurdeep Kaur, Sirsa V. DCIT, Sirsa

ITA 459/CHANDI/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0044 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 29-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGHDR
• Keywords: Wrong claim; Difference of opinion
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 459/CHD/2015 ASSESSMENT YEAR: 2008-09 SMT. GURDEEP KAUR, VS THE DCIT, W/O SHRI KAKA SINGH, CIRCLE, 62, STREET NO. 7, SIRSA. GOBIND NAGAR, HISSAR ROAD, SIRSA. PAN: AUXPK7283J & ITA NO. 460/CHD/2015 ASSESSMENT YEAR: 2008-09 SMT. HARJIT KAUR, VS THE DCIT, PROP. PUNJAB PALACE & CIRCLE, GUEST HOUSE, SIRSA. HISSAR ROAD, SIRSA. PAN: AKBPK3415G & ITA NO. 461/CHD/2015 ASSESSMENT YEAR: 2008-09 SMT. SURINDER KAUR, VS THE DCIT, W/O SHRI MUKHTIAR SINGH, CIRCLE, 62, STREET NO. 7, SIRSA. GOBIND NAGAR, HISSAR ROAD, SIRSA. PAN: AOQPK8649G & ITA NO. 462/CHD/2015 ASSESSMENT YEAR: 2008-09 SHRI AVTAR SINGH, VS THE DCIT, H.NO. 13/526, CIRCLE, NEAR GOVT. SCHOOL, SIRSA. KHAIRPUR, SIRSA. PAN: ASZPS7135B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SHRI MANJIT SINGH,DR DATE OF HEARING : 13.04.2016 DATE O PRONOUNCEMENT : 27.04.2016 2 O R D E R PER BHAVNESH SAINI,JM ALL THE APPEALS BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST COMMON ORDER OF LD. CIT(APPEALS) HISAR DATE D 12.02.2015 FOR ASSESSMENT YEAR 2008-09 CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCO ME TAX ACT. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. BOTH THE PARTIES MAINLY ARGUED IN ITA 459/2015 ( SM T. GURDIP KAUR) AND SUBMITTED THAT FACTS ARE SAME IN T HE REMAINING APPEALS AND ORDER IN THE CASE OF SMT. GUR DIP KAUR MAY BE FOLLOWED IN OTHER CASES. THE APPEAL OF SMT. GURDIP KAUR IS, THEREFORE, DECIDED AS UNDER. ( SMT. GURDIP KAUR ) 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE SO LD LAND WHICH RESULTED IN SHORT TERM CAPITAL GAIN. THEREAFTER, THE ASSESSEE PURCHASED THE SHARES AT RS . 100/- PER SHARE FROM M/S ARCEE ISPAT UDYOG LTD., HI SAR ON 08.11.2007. THE COMPANY IS NOT LISTED WITH ANY STOCK EXCHANGE IN INDIA. ALLOTTED SHARES WERE DISL ODGED BY THE ASSESSEE IN A SHORT PERIOD OF TIME TO M/S TC G STOCK BROKING LTD., NEW DELHI AND SOLD THE SAME ON 31.03.2008 AT RS. 10/- PER SHARE. SO THE SHARES ALLOTTED BY UNLISTED COMPANY ON 08.11.2007 AT RS. 3 100/- PER SHARE WERE SOLD ON 31.03.2008 TO SHARE BROKER AT RS. 10/- PER SHARE. THE SHARE BROKER, M/S TCG STOCK BROKING LTD. SOLD THESE SHARES ON 12.08.2 008 AT RS. 100/- PER SHARE TO MRS. KRISHNA GUPTA, WIFE OF SHRI R.C.GUPTA, MANAGING DIRECTOR OF M/S ARCEE ISPA T UDYOG LTD.,HISAR. MRS. KRISHNA GUPTA IS ALSO ONE O F THE DIRECTORS IN M/S ARCEE ISPAT UDYOG LTD.,HISAR, THUS SHARES WERE ALLOTTED DIRECTLY BY THE UNLISTED COMPA NY CREATING THE CIRCULAR ROUTE, TO SHARE TRANSACTIONS TO CREATE SHORT TERM CAPITAL LOSS. THE SAME MODUS- OPERANDI HAVE BEEN ADOPTED BY OTHER ASSESSEES. THE PARTICULARS OF FILING OF RETURN OF INCOME AND CLAIM OF LOSS ON SHARES IS REPRODUCED IN THE IMPUGNED ORDER. THE ASSESSING OFFICER DISALLOWED SHORT TERM CAPITAL LOS S OF RS. 45 LACS AS CLAIMED BY THE ASSESSEE BY RECORDING DETAILED FINDING IN THE ASSESSMENT ORDER U/E 143(3) . 4. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE OFFERED TO WITHDRAW THE CLAIM OF LOSS TO BUY PEACE SUBJECT TO NO PENAL ACTION. THE ASSESSING OFFICER, HOWEVER, DID NOT ACCEPT ASSESSEE'S OFFER TO WITHDRA W THE CLAIM OF LOSS. THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 5. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(APPEALS) WHO VIDE ORDER DATED 28.07.2011 DELETE D THE ADDITION ON ACCOUNT OF CLAIM OF SHORT TERM CAPI TAL LOSS. THEREAFTER, THE DEPARTMENT FILED A APPEAL BE FORE 4 ITAT CHANDIGARH BENCH, WHO VIDE ORDER DATED 29.11.2012 IN ITA 951/2011 REVERSED THE ORDER OF TH E LD. CIT(APPEALS) AND RESTORED THE FINDING OF THE ASSESSING OFFICER. THEREAFTER, THE ASSESSEE PREFER RED APPEAL BEFORE HON'BLE PUNJAB & HARYANA HIGH COURT A ND HON'BLE HIGH COURT IN THE CASE OF HARJIT KAUR IN IT A 280/2013 VIDE JUDGEMENT DATED 11.11.2013 FOUND NO MERIT IN THE APPEAL OF THE ASSESSEE AND THEREFORE, DISMISSED THE APPEAL. THE DECISION OF THE HIGH COU RT WAS APPLIED IN ALL REMAINING CASES. THE ASSESSING OFFICER ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY PENALTY SHOULD NOT BE IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. THE ASSESSING OFFICER FOUND THAT ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE SHA RE TRANSACTIONS SHOWN TO BE RESULTING IN SHORT TERM CA PITAL LOSS. THE ASSESSING OFFICER HAS HELD THAT ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME TO REDUC E THE TAXABLE INCOME BY WAY OF CLAIMING SHORT TERM CAPITA L LOSS. THE ASSESSING OFFICER APPLIED EXPLANATION-I TO SECTION 271(1)(C) OF THE ACT AND RELIED UPON CERTAI N DECISIONS AND LEVIED THE PENALTY AGAINST THE ASSESS EE. 6. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE LD. CIT(APPEALS) AND IT WAS SUBMITTED THAT MERE CONFIRMATION OF DISALLOWANCE OF LOSS CANNOT IP-SO-F ACTO BE MADE A BASIS TO LEVY PENALTY. NO PENALTY CAN BE LEVIED UNLESS IT IS ESTABLISHED THAT ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. IT WAS 5 SUBMITTED THAT ASSESSEE, IN THE COURSE OF ASSESSMEN T PROCEEDINGS HAD FURNISHED THE EVIDENCE TO SUPPORT T HE LOSS CLAIMED ON ACCOUNT OF SALE OF SHARES. IT WAS SUBMITTED THAT ONCE THERE IS INDEPENDENT CONFIRMATI ON FROM THE PARTY FROM WHOM SHARES WERE PURCHASED AND FROM THE COMPANY WHOSE SHARES WERE PURCHASED, THERE CANNOT BE VALID JUSTIFICATION TO DISALLOW THE LOSS AND IN ANY CASE, CANNOT BE A BASIS TO LEVY PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IT IS A MATTER OF RE CORD THAT LOSS DISALLOWED STOOD DELETED BY THE LD. CIT(APPEAL S), HOWEVER, FINDINGS HAVE BEEN REVERSED BY THE TRIBUNA L. IT IS, THUS, A CASE WHERE THERE IS A DIFFERENCE OF OPINION IN RESPECT OF THE CLAIM MADE BY THE ASSESSEE AND TH IS FACT ALONE ESTABLISHES THAT THERE WERE NO FURNISHIN G OF INACCURATE PARTICULARS OF INCOME. NO DOCUMENTARY EVIDENCE OR FACT HAS BEEN FOUND TO BE EITHER FALSE OR INACCURATE PARTICULARS OR OTHERWISE INCORRECT AND H ENCE, IT CANNOT BE VALIDLY HELD THAT ASSESSEE HAD ANY INT ENTION TO FURNISH ANY INACCURATE PARTICULARS OF INCOME. M ERE EXPRESSION OF AN OPINION BY REJECTION OF LEGAL CLA IM SUPPORTED BY EVIDENCE DOES NOT ENTAIL LEVY OF PENAL TY FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 6(I) THE ASSESSEE RELIED UPON DECISION OF HON'BLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD. 322 ITR 158. IN THE INSTANT CASE, IN THE RETURN OF INCOME, THE ASSESSEE HAD DECLARED LOSS ON SALE A ND PURCHASE OF SHARES. IT IS NOT A CASE WHERE IT HAS BEEN 6 FOUND THAT SHARES HAD NOT BEEN PURCHASED AND SOLD B Y THE ASSESSEE. ALL WHAT HAS BEEN HELD THAT LOSS INC URRED WAS NOT ALLOWABLE SINCE PRICE AT WHICH TRANSACTION TOOK PLACE WAS NOT ACCEPTED. THERE IS NO DISPUTE THAT TRANSACTION DID NOT TAKE PLACE AT THE PRICE STATED IN THE RETURN, MORE PARTICULARLY WHEN PAYMENTS ARE BY ACCO UNT PAYEE CHEQUES AND WITH INDEPENDENT PARTIES. THE ASSESSEE FURTHER SUBMITTED THAT IT CAN BE SEEN FROM THE NOTICE THAT NEITHER THE ITEMS FOR WHICH PROCEEDINGS HAD BEEN INITIATED, HAVE BEEN SPECIFIED AND NOR THE CHA RGE AGAINST THE ASSESSEE IN RESPECT OF WHICH PROPOSED I TEMS HAD BEEN SPECIFIED. THE NOTICE IS, THEREFORE, VAGU E. THERE WERE NO FURNISHING OF INACCURATE PARTICULARS OF INCOME IN THE RETURN OF INCOME. THE CLAIM OF THE ASSESSEE IS BONAFIDE AND ON DEBATABLE ISSUE. 7. THE LD. CIT(APPEALS), HOWEVER, DID NOT ACCEPT CONTENTION OF THE ASSESSEE AND FOUND THAT TRANSACTI ONS OF SHORT TERM CAPITAL LOSS HAS BEEN DONE BY THE ASS ESSEE AT THE LOWER RATE AND RELIED UPON FINDING OF FACT RECORDED BY THE TRIBUNAL AND BY APPLYING EXPLANATIO N-I TO SECTION 271(1)(C) OF THE ACT CONFIRMED THE LEVY OF PENALTY AND DISMISSED THE APPEAL OF THE ASSESSEE. 8. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. HE HAS SUBMITTED THAT ALL THE PARTICULARS OF CAPITAL GAIN WERE DISCLOSED IN THE RETURN OF INCOME. THE LD. CIT(APP EALS) DELETED THE ADDITION ON MERIT WHICH WAS RESTORED BY THE 7 TRIBUNAL. PB-121 IS PURCHASE BILL OF THE SHARES WH ICH HAVE NOT BEEN DOUBTED BY THE AUTHORITIES BELOW. PB -122 IS THE DETAILS OF SHARES/COPY OF CLIENT MASTER LIST . PB- 123 IS CONFIRMATION BY COMPANY TO THE ASSESSING OFF ICER DIRECTLY UNDER SECTION 133(6) OF THE INCOME TAX ACT OF SALE OF SHARES AT THE PRICE OF RS. 10/- PER SHARE I N WHICH BOOK VALUE WAS SHOWN AT RS. 56/- BUT ASSESSEE SOLD THE SAME AT RS. 10/- PER SHARE. THE FACE VALU E IS RS. 10/- AND PREMIUM IS RS. 90/- PER SHARE. PB-125 IS TRANSFER DETAILS. PB-127 IS ALLOTMENT ADVICE BY M/ S ARCEE ISPAT UDYOG LTD.,HISAR. PB-128 IS LEDGER ACC OUNT OF THE ASSESSEE IN THE BOOKS OF M/S ARCEE ISPAT UDY OG LTD.,HISAR. PB-129 IS BANK ACCOUNT SHOWING ALL THE TRANSACTIONS CARRIED THROUGH BANKING CHANNEL. PB-5 IS REPLY BEFORE ASSESSING OFFICER IN WHICH THE ASSESSE E OFFERED TO WITHDRAW THE LOSS ON ACCOUNT OF SHORT TE RM CAPITAL GAIN WITHOUT MAKING ANY CONCESSION/CONFESSI ON OF THE GUILT. 8(I) THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T QUANTUM AND PENALTY PROCEEDINGS ARE INDEPENDENT AND DISTINCT PROCEEDINGS. MERELY BECAUSE ADDITION ON QUANTUM HAVE BEEN CONFIRMED, IS NO GROUND TO LEVY PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE DE TAILS OF SALE OF LAND/SALE OF SHARES HAVE BEEN DISCLOSED CORRECTLY IN THE RETURN OF INCOME. ENTIRE TRANSACT IONS ARE SUBSTANTIATED THROUGH EVIDENCE AND ON SUFFERING OF THE LOSS, ALL PARTICULARS DISCLOSED AND EVEN THE TA X HAVE 8 BEEN PAID ON THE SALE CONSIDERATION. PB-1 AND 2 IS COMPUTATION OF INCOME IN WHICH INCOME FROM CAPITAL GAINS HAVE BEEN SHOWN. THE ASSESSING OFFICER MADE INDEPENDENT INQUIRIES FROM THE COMPANIES WHICH HAVE SUPPORTED THE CLAIM OF ASSESSEE OF SALE OF SHARES A T RS. 10/- PER SHARE. THEREFORE, THERE IS NO CONCEALMENT OF PARTICULARS OF INCOME OR FILING OF INACCURATE PARTI CULARS OF INCOME. NO EVIDENCE OF ANY UNACCOUNTED DEPOSIT IN THE ACCOUNT OF THE ASSESSEE HAVE BEEN FOUND. SINCE ALL MATERIAL FACTS HAVE BEEN DISCLOSED IN THE RETURN OF INCOME AND THERE IS NO ADVERSE FINDING BY THE AUTHORITIES BELOW ON QUANTUM, THEREFORE, EXPLANATIO N-I TO SECTION 271(1)(C) OF THE ACT WILL NOT APPLY AGAI NST THE ASSESSEE. NO ADVERSE INFERENCE CAN BE DRAWN. IN F ACT, EVEN THE ASSESSING OFFICER HAS HELD THE CLAIM OF ASSESSEE TO BE WRONG CLAIM AND NOT FALSE CLAIM. THE ASSESSING OFFICER HAS NOT GIVEN ANY CLEAR-CUT FINDI NG WHETHER IT IS A CASE OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THEREFORE, NO PENALTY IS LEVIABLE AGAINST THE ASSES SEE. 8(II) ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT PENALTY HA S BEEN IMPOSED BY THE ASSESSING OFFICER FOR CONCEALME NT OF PARTICULARS OF INCOME AS PER PENALTY ORDER. THE LD. DR REFERRED TO THE FINDING OF TRIBUNAL ON QUANTUM I N WHICH THE TRIBUNAL HAS HELD THAT ASSESSEE HAS CREAT ED ARTIFICIAL SHORT TERM CAPITAL LOSS AND BY CONSIDERI NG THE 9 ISSUE IN THE LIGHT OF HUMAN CONDUCT AND PROBABILITY , CONFIRMED THE ADDITION ON MERIT. THE LD. DR, THERE FORE, SUBMITTED THAT PENALTY IS RIGHTLY LEVIED AGAINST TH E ASSESSEE. THE LD. DR RELIED UPON ORDER OF ITAT CHANDIGARH IN THE CASE OF BUDHEWAL COOP SUGAR MILLS LTD. VS ACIT IN ITA 661/2006 DATED 10.04.2015, DECISION OF HON'BLE SUPREME COURT IN THE CASE OF MA K DATA PVT. LTD. 358 ITR 593 AND DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHIV NAR AIN KHANNA 107 ITR 542. THE LD. DR SUBMITTED THAT FIND ING OF FACT RECORDED AGAINST THE ASSESSEE CLEARLY REVEA LED THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCO ME THEREFORE, PENALTY IS LEVIABLE. 9. WE HAVE CONSIDERED RIVAL SUBMISSIONS. IT IS WEL L SETTLED LAW THAT FINDINGS GIVEN IN QUANTUM ARE RELE VANT AND HAVE PROBATIVE VALUE BUT THE FINDING OF FACT RECORDED IN THE QUANTUM PROCEEDINGS ALONE ARE NOT SUFFICIENT TO LEVY THE PENALTY AGAINST THE ASSESSEE AUTOMATICALLY. IT IS WELL SETTLED LAW THAT QUANTUM AND PENALTY PROCEEDINGS ARE INDEPENDENT AND DISTINCT PROCEEDINGS. IN THIS CASE, IT IS UNDISPUTED FACT T HAT THE ASSESSEE IN THE RETURN OF INCOME HAS DECLARED INCOM E FROM CAPITAL GAINS AND DISCLOSED ALL THE PARTICULAR S OF CAPITAL GAINS INCLUDING THE SHORT TERM CAPITAL GAIN . THUS, THE ASSESSEE DISCLOSED ALL THE PARTICULARS ON THIS ISSUE ON WHICH PENALTY HAS BEEN IMPOSED. THE CONTENTION OF THE ASSESSEE IS SUPPORTED BY PURCHASE BILL 10 OF THE SHARES ALONGWITH CLIENT MASTER LIST WHICH HA VE NOT BEEN DISPUTED BY THE AUTHORITIES BELOW. THEREF ORE, PURCHASE OF SHARES BY THE ASSESSEE REMAIN UNDISPUTE D. 9(I) THE ASSESSING OFFICER, AT THE ASSESSMENT STAG E CALLED FOR INFORMATION FROM M/S ARCEE ISPAT UDYOG LTD.,HISAR UNDER SECTION 133(6) OF THE ACT REGARDIN G PURCHASE AND SALE OF THEIR SHARES BY THE ASSESSEE. M/S ARCEE ISPAT UDYOG LTD.,HISAR SUPPLIED THE INFORMATI ON TO THE ASSESSING OFFICER UNDER SECTION 133(6) REGARDIN G ALLOTMENT OF SHARES TO THE ASSESSEE AND ITS SALES. COPY OF THE SAME IS FILED AT PAGE 123 IN WHICH THE COMPA NY HAS CONFIRMED THAT THEY HAVE ALLOTTED SHARES TO THE ASSESSEE ON WHICH PAYMENTS HAVE BEEN MADE BY CHEQUE AND LATER ON, THE SHARES HAVE BEEN TRANSFERRED BY T HE ASSESSEE TO SHARE BROKER M/S TCG STOCK BROKING LTD. , NEW DELHI AT RS. 10/- PER SHARE. IT WAS ALSO EXPLA INED THAT FACE VALUE IS RS. 10/- PER SHARE AND PREMIUM I S RS. 90/-. PB-125 IS TRANSFER DETAILS. PB-127 IS COPY OF ALLOTMENT ADVICE. PB-128 IS LEDGER ACCOUNT OF M/S ARCEE ISPAT UDYOG LTD.,HISAR IN THE NAME OF THE ASSESSEE. PB- 129 IS BANK ACCOUNT SHOWING THE TRANSACTIONS THROUG H BANKING CHANNEL. THE ASSESSEE IN THE SURRENDER LET TER HAS OFFERED TO WITHDRAW THE SHORT TERM CAPITAL LOSS AND CLARIFIED THAT IT IS NOT ACCEPTANCE OF THE GUILT OF THE ASSESSEE. THE EXPLANATION OF THE ASSESSEE, THUS, SUPPORTED BY THE EVIDENCE AND MATERIAL ON RECORD TO SHOW THAT ASSESSEE PURCHASED THE SHARES AND SOLD TH E 11 SHARES TO THE SHARE BROKER. IT MAY BE NOTED HERE T HAT SALE OF SHARES BY ASSESSEE TO THE SHARE BROKER AT R S. 10/- PER SHARE AND RECEIPT OF THE SALE CONSIDERATIO N THROUGH BANKING CHANNEL HAVE NOT BEEN DISPUTED BY T HE AUTHORITIES BELOW. THE TRIBUNAL CONFIRMED THE ADDI TION BY APPLYING PRINCIPLE OF HUMAN CONDUCT/PROBABILITY AND NO CONCRETE EVIDENCE HAVE BEEN BROUGHT ON RECORD TH AT ASSESSEE MADE THE FALSE OR BOGUS CLAIM. THEREFORE, ASSESSEE DISCLOSED ALL THE MATERIAL FACTS IN THE RE TURN OF INCOME AS WELL AS AT THE ASSESSMENT STAGE AND EXPLANATION OF THE ASSESSEE WAS SUBSTANTIATED THROU GH EVIDENCE AND MATERIAL ON RECORD INCLUDING THE INQUI RIES CONDUCTED BY ASSESSING OFFICE DIRECTLY FROM THE COMPANY. THUS, EXPLANATION OF THE ASSESSEE WAS BONAFIDE AND BASED ON THE EVIDENCE AND MATERIAL ON RECORD. THE CLAIM OF THE ASSESSEE WAS NOT FOUND TO BE FALSE OR BOGUS. IT WAS NOTED BY THE AUTHORITIES BE LOW THAT GENUINENESS OF THE RATE OF SALE CONSIDERATION REMAINED TO BE PROVED BY THE ASSESSEE. A MERE MAKI NG OF CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS OF INCOME. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS NATH BROS . EXIM 12 INTERNATIONAL LTD. 288 ITR 670 HELD AS UNDER : THE ASSESSEE HAD CLAIMED DIVIDEND INCOME AS HIS BU SINESS INCOME AND ACCORDING TO THE ASSESSEE IT WAS ENTITLED TO A DEDUCTION UNDER CLAUSE (BAA) OF THE EXPLANATION TO SECTION 80HHC(4C ) OF THE INCOME-TAX ACT, 1961. THE ASSESSING OFFICER DISALLO WED THE CLAIM AND IMPOSED PENALTY. THE TRIBUNAL CAME TO THE CONCL USION THAT THE ASSESSEE HAD DISCLOSED ALL THE FACTS, AND THEREFORE , EVEN THOUGH IT HAD MADE AN ERRONEOUS CLAIM WHICH COULD NOT BE JUSTIFIE D IN LAW, THAT BY ITSELF DID NOT ATTRACT THE PENAL PROVISIONS OF THE ACT. ON APPEAL HELD, DISMISSING THE APPEAL, THAT THERE WAS FULL DI SCLOSURE OF ALL RELEVANT MATERIAL. IT COULD NOT BE SAID THAT THE CO NDUCT OF THE ASSESSEE ATTRACTED THE PROVISIONS OF SECTION 271(L)(C). THE CANCELLATION OF PENALTY WAS JUSTIFIED. 9(II) HON'BLE SUPREME COURT IN THE CASE OF CIT VS RELIANCE PETROPRODUCTS PVT.LTD. 322 ITR 158 HELD 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 INACCURATE PARTICULARS OF HIS INCOME. THE MEANING OF THE WORD PARTICULARS U SED IN SECTION 271(1)(C) WOULD EMBRACE THE DETAILS OF T HE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETUR N IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSE E CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. IN ORDER TO EXPOSE THE ASSESSEE TO PEN ALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISIO NS, THE PENALTY PROVISION CANNOT BE INVOKED. BY NO STRE TCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. TH ERE 13 CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS T HE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS AR E FOUND TO BE INACCURATE, THE LIABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDIN G TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORREC T OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY U/S 271(1)(C). A MERE MAKING OF A CLAIM WHI CH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOU NT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INC OME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CA NNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 10. IT MAY BE NOTED HERE THAT LD. CIT(APPEALS) ON QUANTUM HAS DELETED THE ADDITION, HOWEVER, HIS FIND INGS HAVE BEEN REVERSED BY THE TRIBUNAL. THEREFORE, THE CLAIM OF THE ASSESSEE COULD NOT BE HELD TO BE TOTAL LY BOGUS OR FALSE WHICH FINDING HAVE ALSO NOT BEEN GIV EN BY THE AUTHORITIES BELOW. IT MAY ALSO BE NOTED HER E THAT ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS INITIATED PENALTY PROCEEDINGS FOR FURNISHING INACCU RATE PARTICULARS OF INCOME. HOWEVER, WHILE PASSING THE PENALTY ORDER, ASSESSING OFFICER HAS APPLIED EXPLANATION-1 TO SECTION 271(1)(C) OF THE ACT AGAIN ST THE ASSESSEE FOR LEVYING THE PENALTY AND IN THE OPE RATIVE PORTION OF THE PENALTY ORDER, HAS LEVIED THE PENALT Y BECAUSE ASSESSEE HAS FAILED TO PRODUCE DOCUMENTARY EVIDENCE TO SUBSTANTIATE ITS CLAIM. 14 10(I) IT IS CLEAR FROM THE LANGUAGE OF SECTION 2 71(1)(C) OF THE ACT THAT PENALTY CAN BE IMPOSED FOR TWO OFFE NCES I.E. FOR CONCEALING THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS FOR FURNISHING INACCURATE PARTICULARS OF INCOME BUT DI D NOT LEVY THE PENALTY FOR FURNISHING INACCURATE PARTICUL ARS OF INCOME. THE ASSESSING OFFICER LEVIED PENALTY BECAU SE ASSESSEE FAILED TO PRODUCE DOCUMENTARY EVIDENCE TO SUBSTANTIATE ITS CLAIM WITH THE AID OF EXPLANATION- I TO SECTION 271(1)(C) OF THE ACT DESPITE THE FACT THAT PENALTY PROCEEDINGS WERE NOT INITIATED FOR CONCEALMENT OF PARTICULARS OF INCOME. THE FINDING OF THE ASSESSIN G OFFICER IN THE PENALTY ORDER ARE INCORRECT IN THE S ENSE THAT ASSESSING OFFICER HAS RECORDED HIS SATISFACTIO N IN THE PENALTY ORDER THAT ASSESSEE HAS FAILED TO PRODU CE DOCUMENTARY EVIDENCE TO SUBSTANTIATE ITS CLAIM BECA USE ASSESSEE FURNISHED/PRODUCED DOCUMENTARY EVIDENCE AS NOTED ABOVE IN SUPPORT OF ITS CLAIM OF SALE OF SHAR ES AT RS. 10/- PER SHARE TO THE SHARE BROKER AND THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE HAVE BE EN CORROBORATED BY THE INFORMATION PROVIDED BY THE COMPANY UNDER SECTION 133(6) OF THE ACT TO THE ASSESSING OFFICER DIRECTLY. THEREFORE, IT IS NOT A CASE WHERE THE ASSESSEE HAS FAILED TO PRODUCE DOCUMENTAR Y EVIDENCE TO SUBSTANTIATE ITS CLAIM. THE ASSESSING OFFICER LEVIED THE PENALTY BECAUSE THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTABLE TO THE ASSESSING 15 OFFICER. THEREFORE, EXPLANATION-I TO SECTION 271(1 )(C) OF THE ACT WOULD NOT APPLY IN THE CASE OF THE ASSESSEE BECAUSE THE EXPLANATION OF THE ASSESSEE WAS BONAFID E AND WAS SUBSTANTIATED THROUGH DOCUMENTARY EVIDENCE AND EXPLANATION OF THE ASSESSEE WAS NOT FOUND TO BE BOGUS OR FALSE. SINCE ASSESSEE DISCLOSED COMPLETE FACTS IN THE RETURN OF INCOME THEREFORE, THERE CANNOT BE FILING OF INACCURATE PARTICULARS OF INCOME. HON'BLE GUJRA T HIGH COURT IN THE CASE OF NEW SORATHIA ENGINEERING CO. V CIT 282 ITR 642 WHILE FOLLOWING ITS EARLIER DECIS ION IN THE CASE OF CIT VS MANU ENGINEERING WORKS 122 ITR 306 HELD (HEAD NOTE) AS UNDER : PENALTY CONCEALMENT OF INCOME ORDER OF PENALTY MUST CLEARLY STATE WHETHER IT IS FOR CONCEALMENT OR FOR FURNISHING INACCURATE PARTICULARS ORDER STATING PENALTY WAS FOR ONE OF THE OFFENCES NOT VALID INCOME TAX ACT, 1961, S. 271(1)(C). 11. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT EVEN IF THE QUANTUM ADDITION HAVE BEEN CONFIRMED UPTO THE STAGE OF HON'BLE HIGH COURT, HOWEVER, IT IS NOT FIT CASE OF LEVY OF PENALTY UNDE R SECTION 271(1)(C) OF THE ACT. THE DECISIONS RELIED UPON BY LD. DR WOULD NOT SUPPORT THE CASE OF THE REVENUE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 12. IN VIEW OF THE MATTER, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND CANCEL THE PENALTY UNDER SECT ION 16 271(1)(C) OF THE ACT. IN THE RESULT, APPEAL OF THE ASSESSEE SMT. GURDIP KAUR IS ALLOWED. 13. IN THE REMAINING APPEALS ITA 460, 461 AND 462/2015 ( SMT. HARJIT KAUR, SHRI SURINDER KAUR AND SHRI AVTAR SINGH), THE ISSUE IS SAME IN ALL THE APP EALS FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON IDENTICAL FACTS AS HAVE BEEN CONSIDERED IN THE CASE OF SMT. GURDIP KAUR (SUPRA). THEREFORE, FOLLOWING THE REASONS FOR DECISION IN THE CASE OF SMT. GURDIP KAU R, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND CANCE L THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT OF THE I NCOME TAX ACT IN REMAINING APPEALS AS WELL. 14. IN THE RESULT, ALL APPEALS ARE ALLOWED. 15. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( ANNAPAURNA GUPTA ) (BHAVNESH SAIN I) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH APRIL, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD