M/s. Hindustan Urban Infrastructure Ltd., New Delhi V. DCIT, New Delhi

ITA 5579/DEL/2014

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4360 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 15-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHUBHAM SOBTI S
• Section: 271(1)(c); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5579/DEL/2014 ASSESSMENT YEAR: 2006-07 HINDUSTAN URBAN INFRASTRUCTURE LTD., (FORMERLY KNOWN AS HINDUSTAN VIDYUT PRODUCTS LTD.), C/O M/S RRA TAX INDIA, D-28, SOUTH EXTENSION, PART-I, NEW DELHI. PAN: AAACT2345J VS. DCIT, CIRCLE-12(1), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. RAKESH GUPTA, SHRI SOMIL AGGARWAL & SHRI SHUBHAM SOBTI, ADVOCATES REVENUE BY : SHRI AMIT KATOCH, SR.DR DATE OF HEARING : 16.01.2019 DATE OF PRONOUNCEMENT : 12.01.2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 29 TH AUGUST, 2014 OF THE CIT(A)-15, NEW DELHI RELATING TO ASSESS MENT YEAR 2006-07. ITA NO.5579/DEL/2014 2 2. THE ASSESSEE VIDE VARIOUS GROUNDS OF APPEAL HAS CHALLENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE PENALTY OF RS.35,40,570/- LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE IT ACT. 3. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE AS SESSEE IS A COMPANY ENGAGED IN MANUFACTURING OF ALL TYPES OF INSULATORS. IT FILED ITS RETURN OF INCOME ON 27.11.2006 DECLARING AN INCOME OF RS.27,62,11,677/-. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT TH E ASSESSEE COMPANY HAS CLAIMED AN EXPENDITURE OF RS.30.36 LAKHS ON ACCOUNT OF LIQUIDA TED DAMAGE. ON BEING ASKED BY THE ASSESSING OFFICER TO JUSTIFY THE CLAIM, IT WAS SUBMITTED THAT THE ASSESSEE HAD BEEN GRANTED THE PURCHASE ORDER FOR SUPPLY OF INSULATORS BY M/S GUJARAT ELECTRICITY BOARD ON 01.01.2004. THE ASSESSEE WAS UNDER OBLIGATION T O SUPPLY THE MATERIAL ON OR BEFORE 1 ST JULY, 2005. AS PER CLAUSE 18B OF THE TENDER DOCUM ENT, THERE WAS A STIPULATION OF LEVY OF PENALTY @ 0.5% PER WEEK ON THE PRICES SUBJE CT TO A MAXIMUM OF 10% OF THE TOTAL VALUE ON ACCOUNT OF LATE DELIVERY. IT WAS AC CORDINGLY ARGUED THAT THE ASSESSEE HAD PROVIDED FOR LIQUIDATED DAMAGES OF RS.30.36 LAKHS T OWARDS THIS CONTRACT. THE ASSESSEE ALSO RELIED ON A LETTER DATED 16 TH JULY, 2005 OF GUJARAT ENERGY TRANSMISSION CORPORATION. 4. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT TH E ARGUMENTS ADVANCED BY THE ASSESSEE. ACCORDING TO HIM, THE ASSESSEE DID NOT S UPPLY THE MATERIAL AND NEVER INTENDED TO SUPPLY ANY MATERIAL. THE PURCHASE ORDE R WAS GIVEN ON 1 ST DECEMBER, 2004 AND TILL THE END OF THE PRESENT ASSESSMENT YEAR, I. E., 31 ST MARCH, 2006, THE ASSESSEE ITA NO.5579/DEL/2014 3 NEVER SUPPLIED THE MATERIAL. THE OTHER AUTHORITY I .E., GUJARAT ENERGY TRANSMISSION CORPN., ALSO DID NOT ENFORCE ANY LIABILITY CLAUSE B ECAUSE OF THE MERE FACT THAT PENALTY WAS TO BE LEVIED IN CASE OF LATE SUPPLY AND SINCE T HERE WAS NO SUPPLY ITSELF, NO PENALTY COULD HAVE BEEN LEVIED. HE REFERRED TO THE LETTER ISSUED BY GUJARAT ENERGY TRANSMISSION CORPORATION AND OBSERVED THAT THEY WER E ONLY INSISTING ON SUPPLY OF MATERIAL AND IN CASE OF FAILURE TO SUPPLY THE MATER IAL THE ACTION THREATENED WAS OF BLACKLISTING THE COMPANY AND CANCELLING THE REGISTR ATION. RELYING ON THE DECISIONS OF THE HON'BLE SUPREME COURT IN THE CASE OF INDIAN MOL ASSES COMPANY PVT. LTD. VS. CIT AND IN THE CASE OF CIT VS. GEMINI CASHEW SALES CORP N., THE ASSESSING OFFICER REJECTED THE CLAIM OF RS.30,36 LAKHS UNDER THE HEAD LIQUIDAT ED DAMAGES. 5. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT UNDER WHICH INITIALLY A REGISTERED DEED F OR TRANSFER OF 37 ACRES 36 GUNTA LAND WAS MADE IN FAVOUR OF ARMY WELFARE HOUSING ORGANISA TION VIDE DEED DATED 7 TH OCTOBER, 2005. HOWEVER, DUE TO EARLIER PENDING NOT IFICATION FOR THE PURPOSE OF ACQUISITION OF THE BANGALORE MUNICIPAL CORPORATION LATER ON, A RECTIFICATION DEED WAS REGISTERED AND THE SALE TO THE EXTENT OF 8 ACRES 1 0 GUNTA OF LAND WAS REVERSED WITH SALE CONSIDERATION RECEIVED BEING RETURNED BACK. A DETA ILED NOTE IN THIS REGARD WAS SUBMITTED BY THE ASSESSEE AND ACCORDING TO THE SAME , THE ASSESSEE COMPANY MADE SALES OF NET 29 ACRES 26 GUNTA OF LAND FOR A CONSIDERATIO N OF RS.58.02 CRORES. HOWEVER, WHILE COMPUTING THE CAPITAL GAIN, THE ASSESSEE DEDU CTED THE LAND DEVELOPMENT CHARGES, LAND CONVERSION CHARGES AND THE CHARGES PAID TO M/S CHANDANA DEVELOPERS PVT. LTD. ITA NO.5579/DEL/2014 4 FOR SERVICES RENDERED WERE CLAIMED ON THE ENTIRE LA ND. ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE SHOULD HAVE APPORTIONED THE E XPENDITURE PROPORTIONATELY TO THE AREA BEING SOLD I.E., 29 ACRES 26 GUNTA AS AGAINST 37 ACRES 26 GUNTA. HE, THEREFORE, RESTRICTED THE EXPENDITURE BY RS.1,12,27,658/- AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 6. IN APPEAL, THE LD.CIT(A) UPHELD THE ACTION OF TH E ASSESSING OFFICER AND ON FURTHER APPEAL BY THE ASSESSEE, THE TRIBUNAL ALSO D ISMISSED THE APPEAL FILED BY THE ASSESSEE. IN THE MEAN TIME, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE IT ACT. REJECTING VARIOUS EXPLANA TIONS GIVEN BY THE ASSESSEE, THE ASSESSING OFFICER LEVIED PENALTY OF RS.35,40,570/- BEING THE PENALTY LEVIABLE @ 100% OF THE TAX SOUGHT TO BE EVADED ON ACCOUNT OF THE AB OVE TWO ADDITIONS. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLE NGED THE ORDER OF THE CIT(A). SO FAR AS THE FIRST ISSUE ON WHICH PENALTY HAS BEEN LE VIED I.E., ADDITION ON ACCOUNT OF LIQUIDATED DAMAGE IS CONCERNED, THE LD. COUNSEL DRE W THE ATTENTION OF THE BENCH TO THE COPY OF THE AGREEMENT WHICH IS PLACED AT PAGES 127 TO 138 OF THE PAPER BOOK. REFERRING TO PAGE 2 OF THE SAID AGREEMENT (PAGE 128 OF THE PAPER BOOK), HE DREW THE ATTENTION OF THE BENCH CLAUSE 8 OF THE SAID AGREEME NT ACCORDING TO WHICH THERE IS A PENALTY FOR LATE DELIVERY WHICH SHALL BE LEVIED AT % PER WEEK ON THE PRICES SUBJECT TO MAXIMUM 10% RECKONED ON THE VALUE OF LATE DELIVERED SUPPLIES. HE SUBMITTED THAT ON THE BASIS OF THE SAID CLAUSE, THE ASSESSEE HAD MADE THE PROVISION FOR LIQUIDATED ITA NO.5579/DEL/2014 5 DAMAGES DUE TO LATE DELIVERY OF THE SUPPLIES. REFER RING TO THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. DURR INDIA PVT. LTD. REPORTED IN 97 DTR 160 (MAD), HE SUBMITTED THAT UNDER IDENTICAL CIRCUMSTANCES, T HE HON'BLE HIGH COURT HAS UPHELD THE ORDER OF THE TRIBUNAL WHERE THE TRIBUNAL HAS HELD THAT NO PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIABLE ON THE ASSESSEE W HO HAD CLAIMED A DEDUCTION OF THE LIQUIDATED DAMAGES PROVIDED FOR IN THE CONTRACT EVE N THOUGH THERE WAS NO CLAIM AGAINST IT FOR THE SAME. REFERRING TO THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S ELPRO INTERNATIONAL LTD. VS. DCIT AND VICE VERS A, VIDE ITA NOS.28 & 29/MUM/2008 AND ITA NOS.312 AND 313/MUM/2008, ORDER DATED 23 RD MARCH, 2011 , HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION, U NDER IDENTICAL CIRCUMSTANCES, HAS DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A) ON THE GROUND THAT THE CLAIM OF THE ASSESSEE WAS BONA FIDE . RELYING ON VARIOUS OTHER DECISIONS INCLUDING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS (P) LTD. (2010) 322 ITR 158 (SC), HE SUBMITTED THAT NO PENALTY IS LEVIABLE MERELY ON ACCOUNT OF DISALLOWAN CE OF THE LIQUIDATED DAMAGES CLAIMED BY THE ASSESSEE WHEN ALL THE DETAILS ARE AV AILABLE ON RECORD. 8. COMING TO THE SECOND ADDITION ON WHICH PENALTY H AS BEEN LEVIED IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IN THE COMPUTATION OF CAPITAL GAIN HAS CLAIMED A SUM OF RS.3,42,25,000/- PAID TO M/S CHANDANA DEVELOPERS PVT. LTD. AND RS.34,18,000/- AND RS.24,75,433/- TOW ARDS LAND DEVELOPMENT CHARGES AND CONVERSION CHARGES RESPECTIVELY. HE SUBMITTED T HAT ORIGINALLY THE ASSESSEE HAD 37 ITA NO.5579/DEL/2014 6 ACRES 36 GUNTA OF LAND FOR WHICH AGREEMENT WAS EXEC UTED WITH ARMY WELFARE HOUSING ORGANISATION. HOWEVER, AFTER THE EXECUTION OF THE DEED, 8 ACRES AND 10 GUNTA WERE ACQUIRED BY BANGALORE MUNICIPAL CORPORATION AND, TH EREFORE, BALANCE AREA OF LAND I.E., 29 ACRES 26 GUNTA WERE TAKEN BY ARMY WELFARE HOUSIN G ORGANISATION. THE ASSESSEE CLAIMED THE ENTIRE DEVELOPMENT AND CONVERSION CHARG ES WHILE COMPUTING CAPITAL GAINS. HE SUBMITTED THAT WITHOUT INCURRING THESE EXPENDITU RES THE ASSESSEE COULD NOT HAVE SOLD THE LAND. HE SUBMITTED THAT ALL THESE FACTS W ERE AVAILABLE WITH THE ASSESSING OFFICER AT THE TIME OF PASSING OF THE ORDER AND NOT HING WAS HIDDEN OR SUPPRESSED. FURTHER, SUBSEQUENT TO EXECUTION OF THE SALE DEED, THE BANGALORE DEVELOPMENT AUTHORITY, VIDE PUBLIC NOTICE DATED 15 TH OCTOBER, 2005, PUBLISHED IN DECAN HERALAD, ACQUIRED THE LAND FOR PERIPHERAL RING ROAD. HAD TH E ASSESSEE BEEN AWARE OF THIS NOTIFICATION, THEY WOULD NOT HAVE MADE AGREEMENT WI TH ARMY WELFARE HOUSING ORGANISATION FOR TRANSFER OF 37 ACRES 36 GUNTA. LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE VARIOUS SUBMISSIONS M ADE BEFORE THE ASSESSING OFFICER AND SUBMITTED THAT THE CLAIM OF THE ASSESSEE WAS A BONA FIDE CLAIM AND MERELY BECAUSE THE DISALLOWANCE WAS SUSTAINED THE SAME DOES NOT QU ALIFY FOR LEVY OF ANY PENALTY. FOR THE ABOVE PROPOSITION, HE RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS (P) LTD.(SUPRA) AND SUBMITTED THAT MERE MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW B Y ITSELF WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS OF INCOME OR C ONCEALMENT OF INCOME SO AS TO ATTRACT LEVY OF PENALTY U/S 271(1)(C) OF THE IT ACT . ITA NO.5579/DEL/2014 7 9. THE LD. DR, ON THE OTHER HAND, HEAVILY RELIED ON THE ORDER OF THE ASSESSING OFFICER AND CIT(A). 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON THE RECORD. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND PENALTY U/S 271(1)(C) OF THE IT ACT HAS BEEN LEVIED IN THE INSTANT CASE ON ACCOUNT OF ADDITION/DISALLOWANCE OF TWO ITEMS I.E., (I) DISALL OWANCE OF LIQUIDATED DAMAGES OF RS.30.36 LAKHS; AND (II) ADDITION ON ACCOUNT OF CAP ITAL GAIN AMOUNTING TO RS.1,12,23,941/-. SO FAR AS THE DISALLOWANCE OF EX PENDITURE OF RS.30.36 LAKHS ON ACCOUNT OF LIQUIDATED DAMAGES IS CONCERNED, THERE I S NO DISPUTE TO THE FACT THAT THERE WAS A CLAUSE IN THE AGREEMENT (CLAUSE 8) FOR LEVY O F PENALTY @ 0.5% PER WEEK SUBJECT TO A MAXIMUM OF 10% OF THE SUPPLY OF GOODS. IT IS THE CASE OF THE REVENUE THAT THE ASSESSEE NEVER INTENDED TO SUPPLY AND THE OTHER PAR TY I.E., GUJARAT ENERGY TRANSMISSION CORPN. LTD. DID NOT ENFORCE ANY LIABIL ITY CLAUSE NOR LEVIED ANY PENALTY AND THEREFORE, THE CLAIM OF THE ASSESSEE IS NOT BON A FIDE. WE FIND IDENTICAL ISSUE HAD COME UP BEFORE THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. DURR INDIA PVT. LTD. (SUPRA). THE HON'BLE HIGH COURT IN THE SAID DECISION HAS UP HELD THE ORDER OF THE TRIBUNAL HOLDING THAT NO PENALTY U/S 271(1)(C) WAS LEVIABLE ON THE ASSESSEE WHO HAD CLAIMED A DEDUCTION OF THE LIQUIDATED DAMAGES PROVI DED FOR IN THE CONTRACT EVEN THOUGH THERE WAS NO CLAIM AGAINST IT FOR THE SAME. WE FIND THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S ELPRO INTERNATIONAL LTD . HAS ALSO DECIDED AN IDENTICAL ISSUE AND UPHELD THE ACTION OF THE CIT(A) IN DELETING THE PENALTY LEVIED. IN THAT CASE ALSO, IT ITA NO.5579/DEL/2014 8 WAS A CONTRACTUAL OBLIGATION ON THE ASSESSEE AS PER THE TERMS OF THE AGREEMENT FOR LIQUIDATED DAMAGE ON ACCOUNT OF DELAY IN SUPPLY OF MATERIAL. THE ASSESSEE MADE A PROVISION FOR THE SAME WHICH WAS DENIED BY THE ASSE SSING OFFICER WHO DISALLOWED THE SAME AND SUBSEQUENTLY PENALTY WAS LEVIED ON ACCOUNT OF SUCH DISALLOWANCE. THE LD.CIT(A) DELETED THE PENALTY AND ON FURTHER APPEAL FILED BY THE REVENUE THE TRIBUNAL UPHELD THE ORDER OF THE CIT(A) AND DISMISSED THE AP PEAL FILED BY THE REVENUE. 11. SINCE IN THE INSTANT CASE ALSO THERE WAS A CLAU SE IN THE AGREEMENT FOR LEVY OF PENALTY ON ACCOUNT OF DELAY IN SUPPLY WHICH THE ASS ESSEE HAD PROVIDED FOR IN THE ACCOUNTS, THEREFORE, THE CLAIM OF THE ASSESSEE CANN OT BE SAID TO BE NOT BONA FIDE . MERELY BECAUSE THE ADDITION HAS BEEN SUSTAINED BY T HE REVENUE AUTHORITIES, THE SAME DOES NOT CALL FOR LEVY OF PENALTY U/S 271(1)(C) OF THE IT ACT. IN THIS VIEW OF THE MATTER AND IN VIEW OF THE DECISION OF THE HON'BLE MADRAS H IGH COURT IN THE CASE OF DURR INDIA PVT. LTD. (SUPRA ), AND THE DECISION OF THE MUMBAI BENCH OF THE TRIB UNAL IN ELPRO INTERNATIONAL LTD. (SUPRA) UNDER IDENTICAL CIRCUMSTANCES , WE HOLD THAT PENALTY U/S 271(1)(C) OF THE ACT IS NOT LEVIABLE ON ADDITIONS O N ACCOUNT OF LIQUIDATED DAMAGES. THE ORDER OF THE CIT(A) ON THIS ISSUE IS ACCORDINGL Y SET ASIDE. 12. NOW, COMING TO THE SECOND ADDITION I.E., ADDITI ON ON ACCOUNT OF CAPITAL GAIN ON WHICH PENALTY HAS BEEN LEVIED IS CONCERNED, WE FIND THE ASSESSEE IN ITS COMPUTATION OF CAPITAL GAIN HAS GIVEN THE FOLLOWING COMPUTATION FO R WORKING OUT THE SAME:- ITA NO.5579/DEL/2014 9 NET SALES FROM AWHO FOR 29 ACRE 26 GUNTAS OF LAND 580226326 LESS: EXPENSES INCURRED ON THE SALE OF LAND AS UNDE R: BROKERAGE PAID TO M/S CHANDNA DEVELOPERS PVT. LTD. 29011316 CHARGES FOR VARIOUS SERVICES RENDERED PAID TO M/S C HANDNA DEVELOPERS PVT. LTD. 34225000 LAND DEVELOPMETN CHARGES PAID TO BDA 3418000 LAND CONVERSION CHARGES PAID TO DC, BANGALORE 24754 33 LAND CONVERSION CHARGES PAID TO DC, BANGALORE 61257 FEES PAID TO M/S DUA ASSOCIATES FOR DRAFTING OF SAL E DEED 50000 FEES PAID TO SH. B. MOHAN, ADVOCATE FOR OPINION 13 100 FEES PAID TO MR. R.D. KOLEKAR 5000 69254906 510971420 LESS: INDEXED COST OF 29 ACRES 26 GUNTAS OF LAND 465137 NET CAPITAL GAIN 510506283 AMOUNT INVESTED IN REC BONDS U/S 54 EC NIL 13. WE FIND THE LAND DEVELOPMENT CHARGES, CONVERSIO N CHARGES AND BROKERAGE PAID TO M/S CHANDANA DEVELOPERS PVT. LTD., ETC., WERE CL AIMED ON THE ENTIRE LAND HOLDING OF 41 ACRES 6 GUNTAS WHEREAS THE ASSESSEE SOLD ONLY 29 ACRES 26 GUNTA OF LAND AND THE BALANCE 8 ACRES AND 10 GUNTA WAS ACQUIRED BY THE BA NGALORE DEVELOPMENT AUTHORITY FOR EXPANSION OF PERIPHERAL ROAD. IT IS THE CASE O F THE REVENUE THAT THE ASSESSEE SHOULD HAVE CLAIMED PROPORTIONATE EXPENDITURE INSTEAD OF C LAIMING THE ENTIRE EXPENDITURE WHILE COMPUTING THE CAPITAL GAIN. IT IS THE SUBMIS SION OF THE LD. COUNSEL FOR THE ASSESSEE THAT WITHOUT INCURRING THESE EXPENDITURE T HE ASSESSEE COULD NOT HAVE SOLD ANYTHING AND ALL THE DETAILS WERE SUBMITTED IN THE RETURN OF INCOME ITSELF AND NOTHING WAS HIDDEN. WE FIND MERIT IN THE ARGUMENT OF THE L D. COUNSEL FOR THE ASSESSEE THAT WITHOUT PAYING THE SAID CHARGES INCLUDING THE LAND DEVELOPMENT AND CONVERSION CHARGES, IT WAS NOT POSSIBLE TO EXECUTE THE SALE DE ED ON 29 ACRES 26 GUNTA OF LAND. THE LD. COUNSEL ALSO MADE A SUBMISSION AT THE BAR THAT NOTHING HAS BEEN RECEIVED FROM BANGALORE DEVELOPMENT AUTHORITY TILL DATE TOWARDS A CQUISITION OF THE PART OF THE SAID ITA NO.5579/DEL/2014 10 LAND. SINCE THE ASSESSEE IN THE INSTANT CASE HAS S UBMITTED FULL DETAILS BEFORE THE ASSESSING OFFICER AND ALL THE DETAILS WERE FILED IN THE RETURN OF INCOME, THEREFORE, MERE DISALLOWANCE OF THE SAME, IN OUR OPINION, DOES NOT CALL FOR LEVY OF PENALTY. THE HON'BLE SUPREME COURT IN THE CASE OF RELIANCE PETRO PRODUCTS (SUPRA), HAS HELD THAT A MERE MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INAC CURATE PARTICULARS. THE CLAIM OF THE ASSESSEE IN THE INSTANT CASE, IN OUR OPINION, C ANNOT BE SAID TO BE MALAFIED . IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERED OPINIO N THAT NO PENALTY IS LEVIABLE ON ACCOUNT OF ADDITION TO THE LONG-TERM CAPITAL GAIN. THE ORDER OF THE CIT(A) ON THIS ISSUE IS ACCORDINGLY SET ASIDE AND THE ASSESSING OF FICER IS DIRECTED TO CANCEL THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 14. IN THE RESULT, THE APPEAL FILED BY THE AS SESSEE IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 1 2.02.2019. SD/- SD/- (KULDIP SINGH) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT M EMFBER DATED: 12 TH FEBRUARY, 2019. DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI