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TMI Blog2010 (9) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts of the assessee were duly audited and the provision can not thus be said to be devoid of any basis, for the claim of deduction - The Assessing Officer will examine this aspect of the matter and quantify the penalty correctly in the light of the amount so worked out - Decided against the assessee - ITA No. 3400/Mum/2009 - - - Dated:- 30-9-2010 - PRAMOD KUMAR, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER Kirti Kamdar for the Appellant. Om Prakash Kant for the Respondent. ORDER Per Pramod Kumar: 1. This is an appeal filed by the assessee and is directed against the order dated 2nd February 2009 passed by the CIT(A) in the matter of penalty under section 271(1)(c) of the Income Tax Act, 1961, for the assessment year 1993-94. 2. In the first ground of appeal, the assessee is aggrieved of the CIT(A) upholding the penalty under section 271(1)(c) in respect of difference of Rs 4,92,144 between deduction under section 80HH and 80 I of the Act, as claimed by the assessee, vis- -vis as finally granted in the assessment proceedings. 3. To adjudicate on this grievance, only a few facts need to be taken note of. There is no disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und, observed, or discovered . It would, therefore, follow that the expression concealment of income, in its natural sense and grammatical meaning, implies an income is being hidden, camouflaged or covered up so as it cannot be seen, found, observed or discovered. That is certainly not the situation before us. The assessee has made a claim, and that too by revised return which virtually ensured that the fact of assessee s having made this claim cannot remain unnoticed by the Assessing Officer, and has given specific justification and all the supporting details for the same. By no stretch of logic, this situation can be treated as a situation in which any income is concealed by the assessee. Concealment of an income by an income cannot be a passive situation anyway; it implies that the person concealing the income is hiding, covering up or camouflaging an income something which essentially requires a conscious effort. On the contrary, this is a situation in which the assessee has acted in very transparent and straight forward manner. There cannot be any concealment of income in such a situation. 61. The expression furnishing of inaccurate particulars of income has also not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in law, cannot be treated as furnishing of inaccurate particulars of income. In this view of the matter, the case of the assessee can not be said to be a case of furnishing of inaccurate particulars of income , in its natural sense, either. 6. Hon ble Supreme Court judgment, in the case of Reliance Petroproducts (supra), were concerned with the question whether in this case, as a matter of fact, the assessee has given inaccurate particulars . Their Lordships noted that in this case, there is no finding that any details supplied by the assessee in its return were found to be incorrect or erroneous or false and add that such being the case, there would be no question of inviting the penalty under section 271(1)(c) of the Act and that a mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding income of the assessee . It is not even Assessing Officer s case that the facts stated in the return are found to be erroneous , or the assets which were claimed to have been leased out did not exist . In our considered view, in view of the legal position as discussed above, a legal claim per se, right or wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve what he asserts to the hilt positively, but at least material brought on record must show that what he says is reasonably valid 8. The above views were approved by the Hon ble Supreme Court in the case of Mussadilal Rambharose Vs CIT (165 ITR 14). Referring the judgment of Hon ble Patna High Court, Their Lordships have observed as follows: The Patna High Court emphasized that as to the nature of explanation to be rendered by the assessee, it was plain on principle that it is not the law that the moment any fantastic or unacceptable explanation is given, the burden placed on him will be discharged and presumption rebutted. We agree. We further agree that it is not the law that each and every explanation by the assessee must be accepted. It must be acceptable explanation, acceptable to a fact finding body . 9. Viewed in this perspective, undoubtedly just because assessee has an explanation whatever be its worth and credibility, it does not cease to be a case in which concealment penalty is to be levied, but then as long as there is a reasonable explanation for the conduct of the assessee, the onus of the assessee stands discharged. To illustrate, when a salaried employe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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