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TMI Blog2014 (2) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... peculiar circumstances, if the assessee could not support the claim made by it, during the assessment proceedings, it cannot be held that it had filed inaccurate particulars – thus, if wrong claims were made by the assessee-company, on the basis of the material supplied by the employee-CA, penal provisions should not have been invoked - there was no omission or commission on part of the assessee-company for which it should have been visited by penalty u/s 271(1)(c) of the Act – order of the CIT(A) upheld – Decided against Revenue. - ITA No. 111/Mum/2012 - - - Dated:- 7-8-2013 - Shri R. S. Syal And Shri Vivek Varma,JJ. For the Appellant : Shri Kishan Vyas For the Respondent : Shri D. V. Lakhani ORDER Per Vivek Varma, JM:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s worth to mention here that the AO and CIT(A) did not doubted the fact of defalcation committed by the said Shri S.G. Teredesai, Vice President, Finance Accounts. The appellant's claim was not accepted merely on the ground that the letter of only M/s Chetan Dalal Investigation and Management Services was filed which was not substantive evidence. However, during the assessment and appellate proceedings, the fact was not denied that the matter was going on in the Civil Court. In the facts and circumstances, there was force in appellant's claim of defalcation loss of Rs. 14.10 lacs. The AO mentioned in the assessment order that the appellant filed a letter dated 15.12.2007 from M/s. Chetan Dalal Investigation stating that the amount of defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of group company also committee such in the case of other group companies. In the case of M/s. Universal Medicare Pvt. Ltd. for A.Y. 2004-05 the penalty levied on this issue by AO u/s.271(1)(c) was deleted by CIT(A)-24, Mumbai vide order dated 24.05.2010. In the case of M/s. Universal Medicate Pvt. Ltd. for A.Y. 2003-04, the penalty levied by AO on this issue was also deleted by CIT(A)-24, vide order dated 24.05.2010. In the case of another group companies M/s. Geltec Pvt. Ltd. (formerly, known as Banner Pharmacap India P. Ltd.) for A.Y. 2004-05, the penalty levied by AO on the same issue was deleted by the undersigned vide appeal order dated 6.04.2011. In the case of M/s. Geltec Pvt. Ltd. for A.Y. 2003-04, the penalty levied by AO on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty Dropped order of our sister concern Banner Pharmacaps Pvt. Ltd. for A.Y. 2005-05 6 Copy of Assessment order for AY 2006-2007 for allowance of Deflacation Loss dtd. 31.12.2008 and specifically referred to the relevant portion of the coordinate Bench order in the case of Universal Medicare Pvt. Ltd., which reads, "5. Undisputed facts emerging from the material available can be summarized as under: i. Assessee was victim of a fraud ii. Defalcation was committed by the senior officer of the company with the help of his subordinates. iii. Crime was detected in 2005 and complaint against the employees was lodged by the assessee company with police authorities. iv. As soon as the assessee came to know abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not have been invoked. Lodging of a police complaint and subsequent arrest of the ex-employee of the company prove that assessee company prove that assessee company had no role in filing inaccurate particulars rather it was a victim of a fraud. Penalties under the Act are imposed for some omissions and commissions. In our opinion, in the case under consideration it cannot held that there was any omission or commission on part of the assessee-company for which it should have been visited by penalty u/s 271(1)(c) of the Act. 5.2 After deliberating upon the facts and circumstances of the case, we are of the opinion that order passed by the FAA does not suffer from any legal infirmity. He has rightly relied upon the case of Reliance Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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