GORDHANDAS LACHMANDAS, MUMBAI V. ACIT 19(1), MUMBAI

ITSSA 1/MUM/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8196 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 31-05-2011
• Assessment Year: misc
• Appeal Filed On: 04-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N R AGARWAL
• Keywords: Unexplained expenditure; Search and seizure; Deemed to accrue or arise in india; Difference of opinion; Block assessment
• Section: 69C; 37; 132; 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND R.K.PANDA (A.M ) IT(SS)A NO.1/MUM/2010 ( BLOCK ASSESSMENT PERIOD :1989-90 TO 29.09.1998) M/S GORDHANDAS LACHMANDAS , 304, GOKUL ARCADE, B-WING, SUBHASH ROAD, VILE PARLE (E), MUMBAI. PAN: AABFG5390G ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 19(1), PIRAMAL CHAMBERS, MUMBAI. APPELLANT V/S RESPONDENT APPELLANT BY : SHRI N.R.A GARWAL RESPONDENT BY : SHRI PAVAN VE D. O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIREC TED AGAINST THE ORDER DATED 20.11.2009 PASSED BY THE LE ARNED COMMISSIONER OF INCOME TAX (A) FOR THE BLOCK PERI OD 1989- 90 TO 29.9.1998 CONFIRMING THE PENALTY IMPOSED BY T HE AO UNDER SECTION 158BFA(2) OF THE INCOME TAX ACT, 1961 (THE ACT). 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE- FIRM IS ENGAGED IN THE BUSINESS AS AN ENGINEERS AN D ROAD CONTRACTORS. THERE WAS A SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT AT THE OFFICE AND RESIDENTI AL PREMISES OF M/S G.L.MATHREJA GROUP ON 29.9.1998 AND SUBSEQUE NT IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 2 DATES COVERING RESIDENTIAL AND BUSINESS PREMISES O F THE ASSESSEE. DURING THE COURSE OF SEARCH STATEMENT OF SHRI NANDLAL WAS RECORDED WHEREIN HE HAS DECLARED RS.70,00,000/- AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD ON BEHALF OF THE WHOLE GROUP ON ACCOUNT OF INVESTME NT IN UNCOUNTED PROPERTIES. IN RESPONSE TO THE NOTICE I SSUED UNDER SECTION 158BC OF THE ACT, THE ASSESSEE FIL ED RETURN SHOWING UNDISCLOSED INCOME OF THE BLOCK PERIOD AT RS.70,00,000/-. HOWEVER, THE ASSESSMENT WAS COMPLET ED DETERMINING THE TOTAL UNDISCLOSED INCOME AT RS,.97 ,55,250/- VIDE ORDER DATED 24.10.2000 PASSED UNDER SECTION 15 8BC(C) THE ACT. ON APPEAL, THE LEARNED COMMISSIONER OF I NCOME TAX (A) PARTLY ALLOWED RELIEF TO THE ASSESSEE. IN THE ORDER GIVING EFFECT TO THE COMMISSIONER OF INCOME TAX (A )S ORDER DATED 20.11.2002, THE TOTAL INCOME WAS WORKED OUT AT RS.80,40,768/-. SUBSEQUENTLY, THE REVENUE PREFERRED SECOND APPEAL BEFORE THE TRIBUNAL WHICH WAS DECIDED PARTI ALLY IN FAVOUR OF THE REVENUE. THE EFFECT FOR THE SAME W AS GIVEN VIDE ORDER DATED 4.8.2008 AND THE TOTAL INCOME WAS DETERMINED AT RS.81,95,268/-. SINCE IN THE ASSESS MENT PROCEEDINGS, THE AO HAS INITIATED PENALTY PROCEED INGS UNDER SECTION 158BFA(2) OF THE ACT, THEREFORE, THE AO ISSUED NOTICE TO SHOW CAUSE AS TO WHY THE PENALTY U NDER SECTION 158BFA(2) SHOULD NOT BE IMPOSED. IN RES PONSE, THE ASSESSEE FILED HIS WRITTEN SUBMISSIONS DATED 21 .11.2008 IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 3 AND 28.11.2008. THE EXPLANATION GIVEN BY THE ASSE SSEE WAS CONSIDERED BY THE AO AS UNDER : (I) THE CONTENTION OF THE REPRESENTATIVE OF THE ASSESSEE THAT ADDITION OF ONLY RS.50,000/- AND RS.14,500/- CAN BE MADE IN BLOCK ASSESSMENT AND NOT RS.1,29,500/-. IT MAY BE SUBMITTED THAT THE ASSESS EES COUNSEL CLEARLY ADMITTED BEFORE THE HONBLE MEMBER S OF THE ITAT THAT THE SUM OF RS.1,29,500 (RS.1,15,000 RS.14,500) WAS NOT PART OF THE DISCLOSURE. THEREFO RE, THE RELIEF ALLOWED BY THE CIT(A) ON ACCOUNT OF SE T OFF OUT OF EXCESS CASH DISCLOSED IN THE BLOCK RETURN WA S FOUND ERRONEOUS. THE HONBLE MEMBERS THEREFORE DIRECTED THE ASSESSING OFFICER TO MAKE THE ADDITIO N OF RS.1,29,500/- (II) THE CONTENTION OF THE REPRESENTATIVE OF THE ASSESSEE THAT RS.5,00,000/- RECEIVED ON ACCOUNT OF SALE OF PLOT AT POWAI IS TO BE ADJUSTED AGAINST THE INV ESTMENT IS ALSO NOT ACCEPTABLE IN VIEW OF THE FACT THAT N O SUCH ADDITION HAS BEEN MADE IN THE HANDS OF THE ASSESSEE . (III) REGARDING ADDITION OF RS.7,41,289/- ON ACCOU NT OF BHIWANDI CRUSHERLAND, THE EXPLANATION IS NOT SUBSTANTIATED BY ANY COGENT EVIDENCE THAT NO ACTUAL EXPENSES WERE INCURRED. THE EXPENSES CLAIMED TO BE INFLATED TO SHOW MORE INVESTMENT BY MATHREJA FAM ILY IN THE JOINT VENTURE IS ALSO NOT SUPPORTED BY ANY EVID ENCE. AS REGARDS THE ASSESSEES CLAIM OF EXPENSES UNDER SECTION 69C, THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTED IN VIEW OF THE PROVISO TO SECTION 69C INS ERTED BY THE FINANCE (NO.2) ACT, 1998 WITH EFFECT FROM 1 ST APRIL, 1999 WHICH IS REPRODUCED AS UNDER : 69C. UNEXPLAINED EXPENDITURE, ETC. WHERE IN ANY FINANCIAL YEAR AN ASSESSEE HAS INCURR ED ANY EXPENDITURE AND HE OFFERS NO EXPLANATION ABOUT THE SOURCE OF SUCH EXPENDITURE OR PART THEREOF, OR THE EXPLANATION, IF ANY, OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE AMOUNT COVERED BY SUCH EXPENDITURE OR PART THEREOF, AS THE CASE MAY BE, MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR : PROVIDED THAT, NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THIS ACT, SUCH UNEXPLAINED IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 4 EXPENDITURE WHICH IS DEEMED TO BE THE INCOME OF THE ASSESSEE SHALL NOT BE ALLOWED AS A DEDUCTION UNDER ANY HEAD OF INCOME. IN VIEW OF THE ABOVE, THE AO HELD THAT THE ASSESSE E HAS COMMITTED DEFAULT WITHIN THE MEANING OF SECOND PROV ISO TO SUB-SECTION 2 TO SECTION 158BFA OF THE ACT AND AC CORDINGLY, HE IMPOSED PENALTY OF RS.7,17,161/- VIDE ORDER D ATED 30.1.2009 PASSED UNDER SECTION 158BFA(2) OF THE ACT . 3. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME T AX (A) WHILE OBSERVING THAT THE TOTAL UNDISCLOSED INC OME OF RS.11,95,268 (81,95,268-70,00,000) HAS BEEN ARRIVED AT AFTER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL WHICH M EANS THAT THIS UNDISCLOSED INCOME HAS REACHED FINALITY, THERE FORE, THE PENALTY LEVIED BY THE AO OF RS.7,17,161/- UNDER S ECTION 158BFA(2) ON THE UNDISCLOSED INCOME OF RS.11,95,2 68/- DOES NOT CALL FOR ANY INTERFERENCE AND ACCORDINGLY HE CONFIRMED THE PENALTY IMPOSED BY THE AO. 4. BEING AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE SUSTEN ANCE OF THE PENALTY IMPOSED BY THE AO. 5. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE WHILE REITERATING THE SAME SUBMISSIONS AS SUBMITTED BEFORE THE AO AND THE LEARNED COMMISSIONE R OF IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 5 INCOME TAX (A) FURTHER SUBMITS THAT IN VIEW OF THE ORDER DATED 11.5.2011 PASSED BY THE AO UNDER SECTION 154 OF THE ACT, THE FINAL UNDISCLOSED INCOME COMES TO RS.76,95 ,270/- INCLUDING THE ADDITION ON ACCOUNT OF REPAIRS OF CRU SHER OF RS.7,41,289/- UNDER SECTION 69C OF THE ACT. THE A SSESSEE CLAIMED THAT THE EXPENSES INCURRED BY THE ASSESSEE ON ACCOUNT OF CRUSHER SHOULD HAVE BEEN ALLOWED AS DED UCTION UNDER SECTION 69C OF THE ACT. HOWEVER, THE AO HAS NOT ACCEPTED THE ASSESSEES CLAIM IN VIEW OF THE PROVI SO TO SECTION 69C INSERTED BY THE FINANCE (NO.2) ACT, 199 8 WITH EFFECT FROM 1 ST APRIL, 1999. HE FURTHER SUBMITS THAT THE SAID PROVISO IS NOT APPLICABLE TO THE ASSESSEES CASE AS THE ASSESSEES CASE IS FOR THE BLOCK PERIOD 1989-90 TO 29.9.1998 I.E. PRIOR TO THE AMENDMENT MADE BY THE FINANCE (NO.2) ACT, 1998 AND IN SUPPORT THE RELIANCE WAS AL SO PLACED ON THE DECISION IN S.M.DALVI V/S ACIT (2011) 137 TT J (MUMBAI) 581, WHEREIN IT HAS BEEN HELD THAT THE SA ID PROVISO IS PROSPECTIVE AND HENCE THE ASSESSEES CLAIM UNDER SECTION 37 DESERVES TO BE CONSIDERED. IN THE LIGHT OF THE ABOVE, HE SUBMITS THAT IF THE DEDUCTION OF EXPENSES OF RS.7,4 1,289 IS ALLOWED THE INCOME WOULD BE BELOW THE RETURN FILED BY THE ASSESSEE AND HENCE THERE IS NO CONCEALMENT ON THE P ART O THE ASSESSEE. THE RELIANCE WAS ALSO PLACED IN DIL IP M.SHROFF V/S JCIT 291 ITR 520(SC), CIT V/S DODSAL LTD. 218 CTR 430(BOM), ENFIELD INDUSTRIES LTD. V/S DCIT 106 TTJ 89 IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 6 (KOL) AND DCIT V/S KOATEX INFRASTRUCTURE LTD. 102 TTJ 737(MUM). HE, THEREFORE, SUBMITS THAT THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE LEARNED COMMISSION ER OF INCOME TAX (A) BE DELETED. 6. ON THE OTHER HAND, THE LEARNED DR WHILE RELYING ON THE ORDER OF THE AO AND THE LEARNED COMMISSIONER OF INC OME TAX (A) SUBMITS THAT THE ADDITION ON ACCOUNT OF REPAIRS OF CRUSHER AMOUNTING TO RS.7,41,289/- HAS BEEN CONFIRMED BY TH E LEARNED COMMISSIONER OF INCOME TAX (A) AND THE ASSE SSEE DID NOT FILE SECOND APPEAL BEFORE THE TRIBUNAL, THE REFORE, THE ADDITION HAS ATTAINED FINALITY. HE FURTHER SUBMITS THAT THE CLAIM OF THE ASSESSEE IS THAT THE EXPENSES CLAIMED ON ACCOUNT OF REPAIRS OF RS.7,41,289/- SHOULD HAVE BE EN ALLOWED WHILE MAKING THE ADDITION UNDER SECTION 69C OF THE ACT IS MISPLACED IN VIEW OF THE REASONS GIVEN IN THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN FAKIR MOHMED HAJI HASAN V. COMMISSIONER OF INCOME-TAX (2001) 247 ITR 290 (GUJ). SINCE THE REPAIR EXPENSES CLAIMED BY THE ASSESSEE ARE NOT ALLOWABLE, THEREFORE THE LEARNED COMMISSIONER OF INCOME TAX (A) WAS FULLY JUSTIFIED IN SUSTAINING THE PENALTY IMPOSED BY THE AO UNDER SEC TION 158BFA(2) OF THE ACT AND THEREFORE, THE PENALTY IM POSED BY THE AO BE UPHELD. IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 7 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE. WE FURT HER FIND THAT IT IS NOT IN DISPUTE THAT THE AO AFTER GIVING EFF ECT TO THE ORDER OF THE TRIBUNAL HAS WORKED OUT UNDISCLOSED IN COME AT RS.11,95,268/- (81,95,268-70,00,000). HOWEVER, THE AO REVISED THE SAID INCOME VIDE ORDER DATED 11.5.2011 PASSED UNDER SECTION 154 OF THE ACT AT RS.76,95,270/- ALL OWING THE RELIEF TO THE ASSESSEE ON ACCOUNT OF SALE OF FLAT A T POWAI AT RS.5,00,000/-. THUS, THE DIFFERENCE OF UNDISCLOSED INCOME COMES TO RS.6,95,270/-(7695270-70,00,000). THIS DI FFERENCE INCLUDES THE ADDITION OF RS.7,41,289/- ON ACCOUNT OF BHIWANDI CRUSHER LAND. THIS ADDITION WAS MADE BY T HE AO ON THE GROUND THAT THE ASSESSEE HAS MADE UNDISCLOSE D INCOME TO THE EXTENT OF RS.7,41,289/- TOWARDS EXPE NSES ON BHIWANDI CRUSHER LAND. THE ASSESSEE CLAIMED THA T THE EXPENSES IN FACT, NEVER INCURRED AT THE SITE. THE ONLY PURPOSE WAS TO REFLECT THE INFLATED INVESTMENT BY O F MATHREJA FAMILY. IN THE ALTERNATIVE, IT WAS CLAIMED BY THE ASSESSEE THAT THE SAID EXPENSES SHOULD BE ALLOWED AS BUSINES S LOSS. HOWEVER, IN THE ASSESSMENT NEITHER THE AO NOR THE LEARNED COMMISSIONER OF INCOME TAX (A), IN THE ABSENCE OF ANY SUPPORTING MATERIAL, ALLOWED THE CLAIM OF THE ASSES SEE. DURING THE PENALTY PROCEEDINGS, THE ASSESSEE HAS REITERATED HIS CLAIM. HOWEVER, THE SAME WAS DISALL OWED BY IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 8 THE AO ON THE GROUND THAT THE SAID EXPENSES ARE NO T ALLOWABLE IN VIEW OF THE PROVISO TO SECTION 69C INS ERTED BY THE FINANCE (NO.2) ACT, 1998 WITH EFFECT FROM 1 ST APRIL, 1999. AT THIS STAGE, THE ASSESSEE CLAIMED THAT IN VIEW OF THE DECISION OF THE TRIBUNAL IN S.M.DALVI (SUPRA), THE PROVISO TO SECTION 69C HAS BEEN HELD TO BE PROSPECTIVE AND HE NCE THE AO WAS NOT JUSTIFIED IN APPLYING THE PROVISO TO SEC TION 69C IN THE CASE OF THE ASSESSEE WHICH IS PRIOR TO THE A MENDMENT INSERTED BY THE FINANCE (NO.2) ACT, 1998 WITH EFFEC T FROM 1 ST APRIL, 1999. PER CONTRA, THE CASE OF THE REVENUE I S THAT IN VIEW OF THE DECISION IN FAKIR MOHMED HAJI HASAN (SU PRA), THE CLAIM OF THE ASSESSEE IS NOT ALLOWABLE. 8. IN FAKIR MOHMED HAJI HASAN IT HAS BEEN HELD AS U NDER (PAGE 291): HELD, ON THE FACT THAT IT WAS CLEAR THAT, WHEN T HE INVESTMENT IN OR ACQUISITION OF GOLD, WHICH WAS REC OVERED FROM THE ASSESSEE WAS NOT RECORDED IN THE BOOKS OF ACCOUNT AND THE ASSESSEE OFFERED NO EXPLANATION ABO UT THE NATURE AND SOURCE OF SUCH INVESTMENT OR ACQUISI TION AND THE VALUE OF SUCH GOLD WAS NOT RECORDED IN THE BOOKS OF ACCOUNT, NOR THE NATURE AND SOURCE OF ITS ACQUIS ITION EXPLAINED, THERE COULD ARISE NO QUESTION OF TREATIN G THE VALUE OF SUCH GOLD, WHICH WAS DEEMED TO BE THE INCO ME OF THE ASSESSEE, AS A DEDUCTIBLE TRADING LOSS ON IT S CONFISCATION, BECAUSE SUCH DEEMED INCOME DID NOT FA LL UNDER THE HEAD OF INCOME PROFITS AND GAINS OF BUSI NESS OR PROFESSION. THEREFORE, THE TRIBUNAL WAS PERFECT LY RIGHT IN HOLDING THAT THE VALUE OF THE GOLD WAS LIABLE TO BE INCLUDED IN THE INCOME OF THE ASSESSEE AS THE SOURC E OF INVESTMENT IN THE GOLD OR OF ITS ACQUISITION WAS NO T EXPLAINED AND THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 9 THAT THE VALUE OF THE GOLD SHOULD BE ALLOWED AS A DEDUCTION FROM HIS INCOME. WHEREAS IN THE CASE OF THE ASSESSEE THE DISALLOWAN CE OF EXPENSES WAS NOT MADE ON ACCOUNT OF INFRACTION OF LAW. THE ADDITION OF RS.7,41,289/- WAS MADE ON THE GROUN D THAT THE ASSESSEE HAS FAILED TO PROVE THE SOURCE OF EXP ENSES WHICH HAS ALSO BEEN CONFIRMED BY THE LEARNED COMMIS SIONER OF INCOME TAX(A). THIS BEING SO AND KEEPING IN VI EW THAT IN THE PENALTY PROCEEDINGS, THE AO HAS HELD THAT THE ASSESSEES CLAIM IS NOT ACCEPTABLE IN VIEW OF THE P ROVISO TO SECTION 69C INSERTED BY THE FINANCE (NO.2) ACT, 199 8 WITH EFFECT FROM 1 ST APRIL, 1999 WHICH IS OTHERWISE ALLOWABLE IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE CASE O F S.M.DALVI (SUPRA), WE ARE OF THE VIEW THAT THE DECISION REL IED UPON BY THE LEARNED D.R. IS DISTINGUISHABLE AND NOT APPLICA BLE TO THE FACTS OF THE PRESENT CASE INASMUCH AS IT IS NOT ON THE LEVY OF PENALTY UNDER SECTION 158BFA(2) OF THE ACT. 9. IN A RECENT JUDGMENT OF THE HONBLE APEX COURT I N CIT VS. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 322 ITR 158(SC) THEIR LORDSHIPS, AFTER CONSIDERING VARIOUS DECISION S INCLUDING DILIP N. SHROFF VS. JCIT (2007) 291 ITR 519(SC), UN ION OF INDIA VS. DHARAMENDRA TEXTILE PROCESSORS (2008) 306 ITR 277(SC) AND SREE KRISHNA ELECTRICALS VS. STATE OF T AMIL NADU (2009) 23 VST 249 (SC) HAVE OBSERVED AND HELD (PAGE 158 HEADNOTES) AS UNDER: IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 10 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. SECONDL Y, 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 DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. IN ORDER TO EXP OSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTL Y COVERED BY THE PROVISION, THE PENALTY PROVISION CAN NOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKIN G AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCUR ATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHI NG WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, T HE LIABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DET AILS 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 SUPPLIE D BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORREC T 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 INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 10. IN CIT V/S DODSAL LTD (2009) 312 ITR 112(BOM) IT HAS BEEN HELD THAT THE PENALTY UNDER SECTION 158BFA(2) IS DISCRETIONARY AND NOT MANDATORY. 11. IN THIS VIEW OF THE MATTER AND KEEPING IN VIEW THAT IT IS NOT THE CASE OF THE REVENUE THAT THE CLAIM MADE B Y THE ASSESSEE WAS FOUND TO BE FALSE OR UNTRUE OR THE ASS ESSEE IT(SS)A NO.1/MUM/2010 ( B.A. PERIOD :1989-90 TO 29.09.1998) 11 HAS NOT INCURRED ANY SUCH EXPENSES OR THERE IS NO SUCH DIFFERENCE OF OPINION, WE ARE OF THE VIEW THAT MERE LY BECAUSE THE ASSESSEE DID NOT FILE APPEAL BEFORE THE TRIBUN AL AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A) IN QUANTUM APPEAL THAT ITSELF WILL NOT AMOUNT THAT THE ASSESSEE IS LIABLE TO PENALTY UNDER SECTION 158BFA(2) OF THE ACT. ACCORDINGLY, THE PENALTY IMPOSED BY THE AO AND SUST AINED BY THE LEARNED COMMISSIONER OF INCOME TAX (A) IS DELET ED. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE ALLOWED . 12. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 3RD JUNE, 201 1. SD SD (R.K.PANDA) ( D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 3 RD JUNE, 2011 SRL COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI