TMI Blog2011 (10) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provision in this year. Also the claim was withdrawn after its detection and assessee waited till the demand was raised by the AO on passing the order. Therefore in view of decision in case of CIT vs Zoom Communication (P) Ltd. (2010 (5) TMI 34 - DELHI HIGH COURT) & Gurbachan Lal (2000 (11) TMI 44 - DELHI HIGH COURT) wherein held that if the assessee makes a claim which is not only incorrect in law but is also wholly without any basis and the explanation furnished by him for making such a claim is not found to be bonafide, it would be difficult to say that he would still not be liable to penalty under Section 271(1)(c) - as the explanation furnished by the assessee to be false. Penalty u/s 271(1)(c) is leviable - Decided against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date, 29.05.2009, with the written submissions. However, he was asked to come to the office on 01.06.2009. The submissions were taken on record on this date. In other words, it was submitted that the claim had been withdrawn before the non-admissibility was detected by the AO. These submissions were examined in the penalty order, it is mentioned that there is no dispute that the claim of the assessee is erroneous. The claim was not withdrawn by filing any revised return, which could have been filed up to 31.03.2009. It was also submitted that the claim was made under the wrong guidance of the tax advisor. However, reliance was placed on the decision in the case of CIT v. Escorts Finance Ltd. [2010)] 328 ITR 44/[2009] 183 Taxman 453 (Delhi) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the AO. Thus, it is a case of making patently false claim. He referred to the note sheet entry dated 29.05.2009 (it should be read as 28.05.2009), which shows that the representative of the assessee attended and filed written reply. Thereafter, the case was adjourned to 01.06.2009. The entry on 01.06.2009 is to the effect that the representative of the assessee attended, who was asked to explain the claim of Rs. 18,25,166/- u/s 80RRA. After discussion, he agreed that there is an omission in making the claim. The assessment order was passed on 10.06.2009. Thus, it was argued that it was after the detection by the AO that the assessee's representative withdrew the claim. The letter dated 29.05.2009, under which the claim has been withdr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts are that the assessee had filed his return on 31.07.2007 in which deduction of Rs. 18,25,166/- was claimed u/s 80RRA of the Act. The provision is not applicable to proceedings of this year as it was in force only up to assessment year 2004-05. The assessee's representative attended before the AO on 28.05.2009 when the case was discussed and adjourned to 01.06.2009. On this day, he was asked to explain the claim u/s 80RRA and after discussion he agreed that there is an omission in the claim. The assessment was completed on 10.06.2009 and tax in respect of the withdrawn claim was paid as per demand notice issued by the AO. The question is- whether, it is a case of a wrong claim or a false claim and whether, the assessee is liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment years 2004-05 and 2005-06. Therefore, it can be safely concluded that the claim was made after due deliberation and consideration in the years in which it was thought that the same is admissible. Thus, the submission that the advice was given on the basis that the deduction was admissible as in earlier years is false. The facts narrated above also show that the proceedings were not closed on 28.05.2009 as the case was adjourned to 01.06.2009. On this date, the claim was withdrawn after detection as mentioned in the order sheet dated 01.06.2009, which has been duly signed by the representative of the assessee. Therefore, this explanation is also false. The assessee did not pay tax on or about 01.06.2009 but waited till the demand w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue was that the assessee claimed excessive deduction knowing that it was incorrect and, therefore, it amounted to concealment of income. The Hon'ble Court mentioned that "particulars" mean the details furnished in support of the claim. These details were correctly submitted and, therefore, the penalty was not leviable. The facts of the case before us are totally different, namely, that deduction u/s 80RRA is not at all admissible to the assessee and, thus, there is no question of going into any detail or details in the matter. The explanation that the claim was made on the basis of advice that the deduction is admissible as in past has been found to be factually incorrect as no such claim has been made for assessment years 2004-05 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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