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TMI Blog2014 (3) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... lso - the assessee has not filed its false claim in the return of income it may be incorrect claim but not false claim – thus, the penalty is not sustainable - the order of the FAA upheld – Decided against Revenue. - I.T.A. No. 733(Asr)/2013 - - - Dated:- 6-3-2014 - Sh. H. S. Sidhu And Sh. B. P. Jain,JJ. For the Appellant : Sh. Tarsem Lal, DR For the Respondent : Sh. Padam Bahl, CA ORDER Per Bench 1. The Revenue has filed the present appeal against the impugned order dated 09.10.2013 passed by learned CIT(A), Amritsar, for the assessment year 2007-08, on the following grounds: i. Whether the learned CIT(A) is correct in law in deleting the penalty u/s 271(1)(c) by relying upon the ratio of decision of Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be levided in their case:- (1) The assessee is a Co-operative Sugar Mill and is running into heavy losses for a long time and there is no likelihood of improvement of this scenario. (2) The administrative part of the business is being handled by the employees who are neither to get any share in profits nor to bear losses. The accounts are prepared and finalized by the staff. (3) Even after the additions, eth facts remains that there is no tax liability and this addition has no effect particular when huge unabsorbed losses are being wasted due to the expiry of the period during which losses can be set off of carry forward. (4) In a recent judgment of Hon'ble Punjab Haryana High Court in the case of Budhewal Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order dated 29.06.2010 under Section 271(1)(c) of the Act. 4. Aggrieved with the order dated 29.06.2010, passed under Section 274 r/w Section 271(1)(c) of the Act, the assessee filed an appeal before the learned first appellate authority, who vide impugned order dated 09.10.2013, deleted the penalty in dispute by allowing the appeal filed by the assessee. Now, the Revenue is aggrieved with the impugned order passed the present appeal. 5. At the time of hearing learned DR relied upon the order passed by the Assessing Officer and stated that the assessee has claimed ineligible deduction for which the assessee is not entitled. Therefore, the penalty in dispute has rightly been levied by the Assessing Officer and wrongly been deleted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late authority passed the impugned and deleted the penalty in dispute by giving findings in the impugned order. For the sake of convenience, the relevant findings of para nos. 5 to 5.5 (page nos. 5 to 7), are reproduced as under:- 5. I have considered the submissions of learned counsel for the appellant, findings given in the case laws relied upon and gone through findings of the A.O. as contained in his impugned penalty order. The learned counsel for the appellant has agitated against the levy of concealment penalty on account of the short assessment caused due to following points:- (1) Non-payment of cane cess of Rs. 6.62 lacs, bonus Rs. 26,875/- and employees contribution to social welfare funds of Rs. 23,700/-, resulting into disa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) wherein it was held that 'by any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars. A mere making of a claim which is not sustainable in law by itself will not amount of furnishing inaccurate particulars.' 5.4 Thus it can be seen that addition has been made by mere disallowance on cane cess not paid u/s 43B, Bonus not paid u/s 43B and FBT debited to P L A/C. Disallowance does not mean furnishing inaccurate particulars or concealing particulars of income. Similarly, addition on account of suspense a/c does not pertain to year under consideration, so issue a levy of penalty does not arise on this issue well. 5.5 Respectfully following the above ruling of the hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that 'by any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars. A mere making of a claim which is not sustainable in law by itself will not amount to furnishing inaccurate particulars.' In the present case also the assessee has accepted the addition made by the revenue authority and made the payment of tax also but as regards to the penalty in dispute, which is not leviable, in view of the ruling of Hon'ble Supreme Court of India in the case of CIT Vs. Reliance Petro Products Ltd. (supra), wherein the Hon'ble Supreme Court has held that the assessee has not filed its false claim in the return of income it may be incorrect claim but not false claim. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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