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TMI Blog2013 (4) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... consistent view hold that there is no concealment on the part of the assessee which may call for levy of penalty u/s 271(1)(c) the penalty imposed by the A.O. and sustained by the CIT(A) is deleted. In favour of assessee. - I.T.A. No. 9081/Mum/2010 - - - Dated:- 15-2-2013 - Shri Dinesh Kumar Agarwal, JM And Shri Sanjay Arora, AM,JJ. Shri S. Venkatraman Shri Mohit Jain ORDER This appeal preferred by the assessee is directed against the order dtd. 2-9-2010 passed by the ld. CIT(A)- 1, Mumbai for the assessment year 1997-98. 2. Briefly stated facts of the case are that the assessee company is engagedin the business of printing publishing of newspapers and periodicals,guaranteeing, money lending, exports, telecasting broadcasting on TV and radio. It filed the return declaring total income of Rs. 158,12,88,918.00. The A.O. after processing the return u/s 143 (1) of the Income tax Act, 1961 (the Act), selected the case for scrutiny and accordingly issued statutory notices u/s 143(2) and 142(1) of the Act. The assessee has also filed revised return of income at total income of Rs. 158,01,27,570.00 However, the assessment after making certain additions and disallow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enditure is revenue or capital is a highly debatable one, the admissibility as revenue expenditure of amount debited, as repairs will be discussed at the time of assessment. Thus as can be seen from the above mentioned note in the computation of income accompanying the return, that assessee has voluntarily made full disclosure in respect of the deduction claimed. Aforesaid would amply bring out the fact that at best these are disputed claims made with full disclosure and that these have not been detected or unearthed during the course of assessment proceedings to say that there has been concealment or non disclosure of information. We therefore submit that no penalty is levieble in the said circumstances." The reliance was also placed on the following judgments:- CIT v. Ajaib Singh Co. [2002] 253 ITR 630 (Punj. Har.). CIT v. Skyline Auto Products (P.) Ltd. [2004] 271 ITR 335 : [2005] 142 Taxman 558 (MP). It was, therefore, prayed that the penalty proceeding may be dropped. However, the A.O. after applying the provisions of Explanation 1 to section 271(1)(c) of the Act and certain decisions held that the assessee has furnished in-accurate particulars of income leadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty on the similarfacts and circumstances of the case in view of the disclosure made by theassessee in its notes forming part of the computation of income attached withthe return of income following the decision of the Hon'ble Supreme Court in CIT vs. Reliance Petroproducts Pvt. Ltd. (2010) 322 ITR 158 (SC). He also placed on record the copy of the said orders of the Tribunal. He, therefore, submits that since the facts and circumstances of the case are similar, therefore, in view of the Tribunal orders in assessee's own case, the penalty imposed by the A.O. and sustained by the ld. CIT(A) be deleted. 5. On the other hand, the ld. D.R. while relying on the orders of the A.O. and the ld. CIT(A) submits that the cost of paintings of Mr. Tyeb Mehta worth Rs. 20 lacs cannot be said, in any way, to be of revenue nature, therefore, tothis extent the order passed by the ld. CIT(A) sustaining the penalty be upheld. 6. We have carefully considered the submissions of the rival parties andperused the material available on record. We find that the facts are not indispute inasmuch as it is also not in dispute that the assessee while furnishing the return of income has made full disclosure ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure for avoiding tax. The assessee placed all relevant facts in the return filed and made its claim bonafide as revenue expenditure. Nothing is available on record to show that the belief of the assessee and the explanation of the assessee were false and inherently impossible. Even an erroneous claim for deduct ion cannot warrant penalty unless and until it is proved that the claim is made with dishonest intention. Therefore, we agree with ld A.R. that the case of the assessee is squarely covered by the decision dt .30.4.2010 of the Tribunal in assessee's own case for assessment year 1993-94(supra) as well as the decision of Hon'ble Apex court in the case of Reliance Petroproducts Pvt Ltd. (supra). Hence, we uphold the order of ld CIT(A) and reject ground No.1 of the appeal taken by the department . 8. Yet again, the Tribunal in Bennett, Coleman Co. Ltd. vs. ACIT and vice versa in ITA No. 3710/4979/Mum/2011 for A.Y. 1999-2000 dtd. 27-7-2012 deleted the penalty vide para 22 of the order as under:- "22. We have considered submissions of ld representatives of parties and orders of authorities below. We agree with ld CIT(A) that mere disallowance of claim of the assessee does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts in several judgments have drawn a distinction between a false claim,which cannot be countenanced and claims, which are made on the basis oflegal provisions which are debatable and quite plausible. 11. The Hon'ble Apex Court in CIT vs. Reliance Petroproducts Pvt. Ltd.(2010) 322 ITR 158 (SC) after considering various decisions including Dilip N.Shroff vs. JCIT (2007) 291 ITR 519(SC) and Union of India vs. DharamendraTextile Processors (2008) 306 ITR 277(SC) has observed and held (page 158 head notes) as under:- "A glance at the provisions of section 271(1)(c) of the Income- tax Act, 1961, suggests that in order to be covered by it, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. The meaning of the word "particulars" used in section 271(1)(c) would embrace the details of the claim made. Where no information given in the return is found to be incorrect or inaccurate, the assessee cannot be held guilty of furnishing inaccurate particulars In order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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