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2020 (2) TMI 788 - ITAT MUMBAILevy of Penalty u/s. 271(1)(c) - non specifying the precise charge for imposition of penalty - addition u/s 68 treating long term capital gain as unexplained cash credit - HELD THAT:- In the case of furnishing inaccurate particulars of income, the onus is on the Revenue to, prove that the assessee had furnished the inaccurate particulars, while in the case of concealment of particulars of income, where the Explanation 1 is applicable; the onus is on the assessee to prove that he has not concealed the particulars of income. It is apparent from the Explanation-1, this Explanation clearly states where in respect of any facts material to the computation of total income of any person such person fails to offer an explanation or offers explanation which is found by the AO to be false or such person offers an explanation which he is not able to substantiate or fails to prove that such explanation is bona fide and all the facts relating to the same and material to the computation of his total income have been disclosed by him. We noted that the AO, failed to discharge his onus as he was not sure at the initiation of penalty under section 271(1)(c) for which specific charge of penalty has been initiated by the AO. Even while levying the penalty also, the AO simply relied on the Explanation 1 to s. 271(1)(c), though he levied the penalty for inaccurate particulars of income . Therefore, in our opinion, the basis of levy of penalty itself is not correct. As apparent from the provisions of s. 271(1)(c) that Explanation-1 of section 271(1)(c) is not applicable in case inaccurate particulars are furnished. Therefore, in our opinion, the basis of levy of penalty itself is not correct. Thus, we direct the assessing officer to delete the penalty. - Decided in favour of assessee.
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