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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 ..... the Commissioner of Income-tax (Appeals) levied under section 271(1)(c) of the Income-tax Act, 1961. 3. The brief facts of the issue, relating to the assessment year 2005-06, are that the assessee is an individual deriving income from salary and other sources. For the assessment year 2005-06, he has filed return of income admitting an income of Rs. 3,23,47,200. This included long-term capital gain and short-term capital gains also. The Assessing Officer completed the assessment determining the income at Rs. 5,51,54,588. This includes securities transaction tax of Rs. 62,48,476 and disallowance under section 94 being dividends received on shares attracting short-term capital gain. During the penalty proceedings, the assessee submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidend was received while computing the short-term capital gains. The Assessing Officer added the securities transaction tax of Rs. 50,10,730, interest paid to broker of Rs. 12,86,814 and disallowance under section 94 being dividend received on shares attracting short-term capital gains of Rs. 41,95,162. With regard to the lapse of the assessee in claiming the loss on short-term capital gains on the shares in which dividend has been received by the assessee and which attracts disallowance under section 94 of the 1961 Act, the Assessing Officer levied penalty under section 271(1)(c) of the Act. Thus there was a wrong claim of set-off of excess loss under short-term capital gains to the tune of Rs. 41,95,162 and the same was added to the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be a reason for levy of penalty under section 271(1)(c) of the Act. The assessee relied on the following case law : (a) CIT v. Honeywell Dace (India) Ltd. [2007] 292 ITR 169 (Delhi) wherein, dismissing the appeal, it was held that the Commissioner and the Tribunal had concurrently come to the conclusion that the assessee had not furnished any incorrect particulars in the 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 war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars. 6. We have gone through the above judgments. In our opinion, in view of the above judgments, mere making of a wrong claim by the assessee by itself shall not constitute concealment of income or furnishing inaccurate particulars of income. The Assessing Officer has to complete the assessment after verifying various claims of the assessee. It is very much necessary to verify the claim of the assessee and if it is a genuine claim 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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