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TMI Blog2014 (1) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars – the order of the CIT(A) upheld – Decided against Revenue. - I.T.A. No. 455/Jodh/2012 - - - Dated:- 6-8-2013 - Shri Hari Om Maratha And Shri N. K. Saini,JJ. For the Petitioner : Shri Mahesh Kumar (D.R.) For the Respondent : Shri Sachin Chaudhary ORDER Per N. K. Saini, A. M. This is an appeal by the department against the order dated 23/10/2012 of Ld. CIT(A), Udaipur. The only ground raised in this appeal is as under: "On the facts and in the present circumstances of the case, the Learned CIT(A) has erred in deleting the penalty of Rs. 3,95,688/- imposed u/s 271(1)(c) of the I.T. Act." 2. Facts of the case in brief, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been levied. It was also stated that the addition was made in the assessment order on estimate basis and no penalty u/s 271(1)(c) would have been imposed on estimated addition and that the assessee never admitted the income added was her concealed income. Reliance was placed on the judgment of the Hon'ble Bombay High Court reported at (2008) 218 CTR (Bombay) 581. However, the Assessing Officer did not find merit in the submission of the assessee by stating that the assessee has made investment of Rs. 7,83,792/- from out of books and undisclosed sources of income and concealed particulars of income to that extent. He, therefore, levied the penalty u/s 271(1)(c) of the Act amounting to Rs.3,95,688/- being 150% of the tax sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elying on the confirmation of the estimated addition out of the opening balance by the ITAT. The learned CIT(A) observed that the assessment proceedings and penalty proceedings are independent and separate proceedings, so those are required to be considered independently and that a mere confirmation of an addition by appellate authority was not sufficient for imposition of the penalty. Reliance was placed on the decision dated 23/08/2012 of the ITAT, Kochin Bench in the case of Parison Exports Inc. Vs. The ACIT in appeal No. 174/2012 and also on the decision dated 13/07/2012 of the ITAT Delhi Bench in the case of Global Green Company Limited Vs. DCIT in appeal No. 419/2012. 5. The learned CIT(A) further observed that the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there was no case for imposition of penalty u/s 271(1)(c)of the Act in case of the assessee as the penalty imposed by the Assessing Officer was purely based on confirmation of part of disallowance of opening capital. Accordingly, penalty levied by the Assessing Officer was deleted. Now the department is appeal. 7. The learned D.R. supported the order of the Assessing Officer and further submitted that part of the addition made by the Assessing Officer was sustained by the ITAT, therefore, the penalty u/s 271(1)(c) was rightly levied and the learned CIT(A) was not justified in deleting the same. 8. In his rival submissions, the learned counsel for the assessee reiterated the submissions made before the authorities below and furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the penalty u/s 271(1)(c) of the Act. A similar issue has been adjudicated by this Bench of the Tribunal vide order dated 12/10/2012 in the case of The ITO vs. Balotra Cooperative Marketing Society Ltd. in I.T.A. No. 11 and 12/Jodh/2012 (supra) wherein, the relevant findings has been given in paras 2.7 to 2.9, which read as under:- "2.7 The ld. DR strongly supported the order of the Assessing Officer while the ld. counsel for the assessee reiterated the submissions made before the authorities below and strongly supported the impugned order passed by the ld. CIT(A). 2.8 We have considered the submissions of both the parties and gone through the materials available on record. In the present case, it appears that the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particulars of his income. When such particulars are found to be inaccurate, the liability would arise. To attract penalty, the details supplied in the return must not be accurate, not exact or correct, not according to the truth or erroneous. Where there is no finding that any details supplied by the assessee in its return are found to be incorrect or erroneous or false there is no question of inviting the penalty under section 271(1)(c). 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. Such a claim made in the return cannot amount to furnishing inaccurate particulars.'' 2.9 We, therefore, by keeping in view the rat io laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X
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