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TMI Blog1979 (6) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... nd and the income of the house property was added under s. 64 of the I.T. Act 1961. The WTO particularly relied upon the decision of the Tribunal dated 28th Nov.,1973 made in ITA No. 4610 (Gau) of 1971-72 for the asst. yr. 1963-64 where the claim of the assessee that the amounts were advanced by him as a loan has been rejected. On completion of the re-assessments including the value of the house under s. 4 of the W.T. Act to the net wealth of the assessee, the WTO initiated proceedings for the imposition of penalty and referred the matter to the Inspecting Assistant Commissioner. After hearing the assessee, the Inspecting Assistant Commissioner was of the opinion that the omission to include the house property of the wife in the return of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concealment for the other assessment years. It was submitted that in the circumstances the penalties imposed should be cancelled. 4. On the other hand, it was contended on behalf of the Revenue that the assessee had given inaccurate particulars of the asset since he had shown the asset given to the wife as a loan whereas it was, in fact, a house property and had thus concealed the asset. It was submitted that even the claim that it was a loan was not bonafide as that claim was rejected in the income-tax proceedings on the ground that the evidence produced in support thereof was unreliable. It was then argued relying on the decision of the supreme Court in the case of Smt. Mohini Thapar(2) that the house property was an asset indirectly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a registered instrument in writing. It is contended on behalf of the Revenue that the house property may be considered to be indirectly transferred and reliance was placed in the decision of the Supreme Court in the case of Smt. Mohini Thapar(2). We find that this decision actually contradicts the contention of the Revenue because it was held therein that where the wife received income from shares purchased with the money given by the husband, the income was indirectly earned from the money which was directly transferred and the shares were not held to be indirectly transferred. Thus the very question whether the asset, namely, the house property is includible was matter of dispute and obviously there can be no concealment where the very ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilure to furnish the correct particulars since the assessee wrongly claimed it as a loan which claim had been subsequently rejected. Here again, we are of the opinion that the act of raising a legal contention cannot amount to furnishing inaccurate particulars. On the facts present in the case the inference of the assessee was that it was a loan but that it inference was rejected in the income-tax proceedings. Such a rejection cannot indicate any concealment of particulars since it was a matter of dispute. The Revenue wanted to attribute mala fides to that claim, but we do not see any justification for it especially when the income-tax proceedings have not become final and in particular the inference that the amount transferred was not a lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee we are of the opinion that no penalty can be imposed for these assessment years also. The fact that finally assessed wealth is admittedly no different from the returned wealth assumes significance, for, it is a moot point whether in such circumstances penalty can be imposed under s. 18 (1)(c) merely because the claim of the assessee regarding the nature of the asset is rejected and he has held to have furnished inaccurate particulars of that asset. Therefore, even if it could be said that the statement of the assessee that the advance to the wife as a loan was inaccurate the benefit of the double as a regarding imposition of penalty inspite of there being no loss of revenue must also go to the assessee. We have, therefore, no he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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