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TMI Blog2015 (10) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... simply relied on the explanation to Section 271(1)(c) even though he levied the penalty for furnishing the inaccurate particulars of income. This is apparent from the provisions of Section 271(1)(c) that explanation of Section 271(1)(c) is not applicable in case inaccurate particulars are furnished. Therefore, in our opinion, the basis of levy of penalty itself is not correct. As decided in CIT vs. New Sorathia Engineering Co. vs. CIT, [2006 (1) TMI 71 - GUJARAT HIGH COURT] it is incumbent upon the Assessing Officer to state whether penalty was being levied for concealment of particulars of income by the assessee or whether any inaccurate particulars of income had been furnished by the assessee. - Penalty levied quashed - Decided in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad debts amounting to ₹ 60,17,733/- in the profit and loss account and same was omitted to be included in the income of the assessee in computation. When the assessee was confronted by the Assessing Officer, the assessee realized the mistake and immediately withdrawn the claim. The Assessing Officer also noted in the penalty order dated 24.12.2012 under para 4 that the assessee committed mistake while showing the provisions for bad and doubtful debts and in turn not adding it back in the computation of income. On the basis of these observations, the ld. CIT(A) took the view that it is a clear case or prima facie mistake on the part of the assessee not to add back the provisions for bad and doubtful debts in the computation of income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rward losses, he contended that there was not motive of excess claim. In this regard, he relied on the following decisions :- (i) ACIT vs. Raj Multiplex , 44 SOT 53 (Had) (ii) Amruta Organics Pvt.Ltd. vs. DCIT( I.T.A.No. 1121 /PN/2011 ) He also contended that no penalty can be levied, once the mistake is noticed and the assessee has agreed to withdraw the claim. For this reliance was placed on the following decisions: (a) CIT vs. Lakshmi Vilas Bank, 303 ITR 428. (b) CIT vs. Shri Shardha Textile Processors (P) Ltd., 286 ITR 499. It is merely a claim which is not sustainable in law. Therefore, no penalty can be levied. Reliance was placed in this regard on the decision of the CIT vs. Reliance Petro Products Limited, 322 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by way of penalty,- iii) in the cases referred to in clause (c) or clause (d)], in addition to tax, if any, payable] by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefits] or the furnishing of inaccurate particulars of such income or fringe benefits]. 73[* * *] Explanation 1.-Where in respect of any facts material to the computation of the total income of any person under this Act,- (A) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Principal Commissioner or] Commissioner to be false, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been concealed. Explanation (1) is not applicable in this case of furnishing inaccurate particulars of income. In this case, we noted that the Assessing Officer has initiated penalty proceedings u/s 271(1)(c) without pointing out whether the assessee has concealed the particulars of income. The penalty ultimately was levied on the assessee for furnishing inaccurate particulars by observing that the case of the assessee is covered by the Explanation to Section 271(1)(c). We may observe that in the case of furnishing inaccurate particulars of income, the onus is on the Revenue to, prove that the assessee had furnished the inaccurate particulars, while in the case of concealment of particulars of income, where the Explanation (1) is applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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