TMI Blog2010 (4) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... RT ) is squarely applicable to the facts of the present case. The claim made by the assessee was viewed differently by the assessee and the department. It was, as such, only a case of a difference of opinion and not only that, the opinion held by the assessee was prompted by the decision in “CIT v. Justice S.C. Mittal” (1979 -TMI - 37169 - PUNJAB AND HARYANA High Court). No concealment penalty is, in such a situation, attracted. - No penalty - IT Appeal No. 3985 (Delhi) of 2009 - - - Dated:- 7-4-2010 - A.D. Jain, Judicial Member J, And R.C. Sharma, Accountant Member J, N.K. Rustagi for the Appellant. H.K. Lal for the Respondent. ORDER Per A.D. Jain, : Judicial Member : The assessee s appeal for AY 2004-05 is aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had not disclosed the details with regard thereto; that it is only that in the opinion of the Authorities below, the assessee had claimed an exemption which is not available to him; that it is well settled that no concealment penalty can be levied on merely disbelieving the explanation offered by the assessee; that otherwise too, in CIT v. Justice S.C. Mittal TC 32 R 593 (Punj. Har.), it has been held that law does not prohibit the accommodation and that rather, the main consideration is payment. The Ld. AR of the assessee has placed reliance on the decision of the Hon ble Supreme Court in the case of CIT v. Reliance Petro Products Pvt. Ltd. 322 ITR 158 (SC). 6. On the other hand,Ld. DR has strongly supporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. 9. As per CIT v. Justice S.C. Mittal ( supra ), it is the payment which is the main consideration. Law does not prohibit the extent of accommodation. This decision was cited by the assessee before the AO in the penalty proceedings. The AO, however, distinguished it same, observing that in the assessee s case, the assessment order was not appealed against, showing that the assessee was convinced about the addition. This distinction, in our considered opinion, is not proper apropos , the penalty in question. The fact of the matter is that CIT v. Justice S.C. Mittal ( supra ) holds that the extent of the accommodation is not prohibited by the law and it is the payment which is the main consideration. This is also evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision, the penalty provision cannot be invoked; that by no stretch of imagination can making an incorrect claim tantamount to furnishing of inaccurate particulars; that to attract penalty, the details supplied in the return must not be accurate, not exact or correct, not according to the truth or erroneous; that where there is no finding that any details supplied by the assessee in his return were found to be incorrect, erroneous or false, there is no question of inviting the penalty u/s 271(1)( c ) of the Act; that 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; and that such a claim made in the return cannot amount to furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also mention that the objection of the assessee with regard to no satisfaction for initiation of penalty proceedings having been recorded by the AO does not weigh with us. It is the categorical finding of the CIT(A) in the order under appeal that on examination of the assessment record she found that the AO had indeed recorded his satisfaction for initiating the penalty proceedings; that such satisfaction stood recorded in the body of the assessment order; and that the A.O. had also made a noting in the order sheet that notice u/s 271(10)( c ) be issued. The assessee has not shown otherwise. A perusal of the assessment order shows the A.O. to have initiated the penalty proceedings thus; The penalty proceedings u/s 271(10)( c ) is initi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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