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TMI Blog2012 (8) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... in our opinion, there is a bona fide error on the part of the assessee and that cannot be a reason for levy of penalty. More so, the assessee admitted the mistake in the course of assessment proceedings. Being so, we are of the opinion that there is a reasonable cause in this case. The provisions of section 271(1)(c) of the Act give discretionary powers to the Assessing Officer to levy or not to levy penalty in the case of concealment of income or furnishing inaccurate particulars of income. - Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment after introduction of provisions of taxing short-term capital gains at concessional rate wherein the securities transaction tax should not be considered. This mistake crept in inadvertently and the same continued in the subsequent year also. Therefore, the claim of securities transaction tax deduction is made by mistake and similar is the case of claim of loss in case of dividend stripping and hence accepted for addition. It was also submitted that all the facts relating to computation of income is before the Assessing Officer and there is no inaccuracy in the particulars inasmuch as the same details only are used to add back. However, the Assessing Officer, not accepting the submissions, levied penalty under section 271(1)(c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and penalty under section 271(1)(c) of the Act was levied. This wrong claim was accepted by the assessee after being pointed out by the Assessing Officer. According to the Assessing Officer, the acceptance of wrong claim was not voluntary and it was done after it was pointed out by the Assessing Officer in the course of assessment proceedings. It is an admitted fact that provisions of section 48 are amended with effect from April 1, 2005 as per which securities transaction tax is not allowable. Similarly, provisions of section 94(7)(b) are also introduced with effect from April 1, 2005 by the Finance (No. 2) Act, 2004. The assessee furnished full details of shares on which dividend was received and loss which was set off. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e returns filed by it and that merely because the assessee had not been able to substantiate its claim for deduction of the amounts suffered towards losses, that was no ground for holding that the expenses were not genuine. There is, in our view, no error of law in that view to warrant interference by this court. Since the assessee had on the findings recorded by the Commissioner and the Tribunal furnished all the particulars relating to the expenditure claimed in its profit and loss account and also loss on account of sale of shares, the deletion of penalty by the Commissioner and the Tribunal was legally justified. (b) CIT v. Mehta Engineers Ltd. [2008] 300 ITR 308 (P H) wherein, dismissing the appeals, held that undispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim it has to be allowed. The claim of the assessee could not be allowed because provisions of the Act that were amended with effect from April 1, 2005 and the assessee has made a wrong claim in considering the new amendments and in our opinion, there is a bona fide error on the part of the assessee and that cannot be a reason for levy of penalty. More so, the assessee admitted the mistake in the course of assessment proceedings. Being so, we are of the opinion that there is a reasonable cause in this case. The provisions of section 271(1)(c) of the Act give discretionary powers to the Assessing Officer to levy or not to levy penalty in the case of concealment of income or furnishing inaccurate particulars of income. In the case of Hindust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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