DCIT, New Delhi V. Sh. Amit Jain, New Delhi

ITA 5596/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58676 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-02-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 12-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Section: 271(1)(c)

Judgement Text

ITA NO. 5596/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER ITA NO.5596/DEL/2011 ASSTT. YEAR: 2006-07 DY.COMMISSIONER OF INCOME TAX, VS SHRI AMI T JAIN, CIRCLE 30(1), 7/33, ANSARI ROAD, NEW DELHI. DARYA GANJ, NEW DELHI. (PAN AAEP J3715H) (APPELLANT) (RESPONDENT) APPELLANT BY: MRS. ANUSHA KHURANA, SR. DR RESPONDENT BY: SHRI AMIT JAIN O R D E R PER G.D. AGRAWAL, VICE PRESIDENT THE ONLY GROUND RAISED IN THIS APPEAL BY THE REVEN UE READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A)-XXV, NEW DELHI HAS ERRED IN CANCELLING PENAL TY ORDER U/S 271(1)(C) OF THE IT ACT. 2. THE FACTS OF THE CASE ARE THAT FOR THE YEAR UNDE R CONSIDERATION, THE ASSESSEE DECLARED INCOME OF RS. 2,60,73,558/- FROM SHORT TERM CAPITAL ACCOUNT. THE AO ASSESSED THE SAME INCOME AS INCOME FROM BUSINESS OR PROFESSION. HE ALSO LEVIED PENALTY U/S 271(1)(C) A MOUNTING TO RS. 58,45,899/- FOR VERIFYING INACCURATE PARTICULARS OF THE INCOME. ON APPEAL, THE ITAT VIDE ITS ORDER DATED 30 TH JUNE 2011 IN ITA NO. 309/DEL/2010 ITA NO. 5596/DEL/2011 2 ACCEPTED THE ASSESSEES CONTENTION AND DIRECTED THE AO TO ASSESS THE INCOME FROM CAPITAL GAIN AS DISCLOSED BY THE ASSESSEE. IN VIEW OF THE ABOVE ORDER IN THE QUANTUM APPEAL, THE CIT(A) CANCELLED THE PENALT Y LEVIED U/S 271(1)(C). THE REVENUE, AGGRIEVED WITH THE ORDER OF THE CIT(A) , IS IN APPEAL BEFORE US. 3. LD. DR STATED THAT THE DEPARTMENT HAS NOT ACCEPT ED THE ORDER OF THE ITAT IN THE QUANTUM APPEAL AND IS IN APPEAL BEFORE THE HONBLE DELHI HIGH COURT. THE ASSESSEE, WHO APPEARED IN PERSON, RELIE D UPON THE ORDER OF CIT(A). WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. AT PRESENT, THE FACT REMAINS THAT THE STAND OF THE ASSESSEE THAT THE INCOME FROM PURCHASE AND SALE OF SHARES IS TO BE ASSESSED AS CAPITAL GAIN IS ACCEPTED BY THE ITAT . MOREOVER, IF THE REVENUE HAS ASSESSED THE INCOME IN OTHER HEAD, THEN THE HEAD IN WHICH INCOME IS DISCLOSED BY THE ASSESSEE, IT WOULD NOT A MOUNT TO EITHER CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME. WHILE TAKING THIS VIEW, WE ALSO DERIVE SUPPORT FROM THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS RELIANCE PETROPROD UCTS PVT. LTD.(2010) 322 ITR 158(SC) IN WHICH THEIR LORDSHIPS HAVE STATE D 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 USED IN SECTION 271(1)(C) WOULD EMBRA CE THE ITA NO. 5596/DEL/2011 3 DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GI VEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PART ICULARS. IN ORDER TO EXPOSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISIONS, THE PENALTY PRO VISION CANNOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKIN G AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHI NG WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAU SE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PA RTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, THE LIABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE, NOT EX ACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED 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 IN ACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INAC CURATE PARTICULARS. 4. ACCORDINGLY, WE UPHOLD THE ORDER OF THE CIT(A) A ND DISMISS THE APPEAL FILED BY THE REVENUE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.2.2012. SD/- SD/- ( A.D. JAIN ) ( G.D. AGRAWAL ) JUDICIAL MEMBER VICE PRESIDENT DT. 16TH FEBRUARY 2012 GS ITA NO. 5596/DEL/2011 4 COPY FORWARDED TO:- 1. DCIT, NEW DELHI. 2. SHRI AMIT JAIN, NEW DELHI. 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR