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TMI Blog2016 (1) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... and illegal. The appellant company had never furnished any inaccurate particulars at any stage of assessment proceedings as well in penalty proceedings. As the Hon'ble ITAT has already allowed the quantum appeal in favour of appellant company. The penalty imposed u/s. 271(1)(c) be deleted in full. 2. That the appellant company craves leave to add, amend, alter or withdraw any of the ground of appeal on or before the date of hearing. 2. The brief facts of the case are that the assessment was completed u/s. 143(3) dated 30.9.2005 and AO assessed the income at Rs. 2,44,62,910/- and proposed the penalty u/s. 271(1)(c) for the failure on the part of the assessee to disclose true particulars of income regarding the wrong claim of capital loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty by the AO has been deleted by the ITAT impugned penalty amount imposed by the AO and sustained by the CIT(A) cannot survive and accordingly the same was cancelled and the orders of the revenue authorities were set aside. Aggrieved with the Tribunal order dated 3.6.2009, the Revenue preferred an Appeal No. 440/2010 in the case of CIT vs. Moderate Leasing & Capital Services Ltd. vide order dated 6.2.2012 has adjudicated the issue of penalty as under:- "Ld. Counsel for the parties admit that an order of remit is required to be passed in the present case as the order of the tribunal in the quantum proceedings has been set aside by this Court in judgment dated 18.11.2011 passed in CIT-II vs. Moderate Leaving and Capital Services Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt head is not concealment and lastly submitted that in the absence of striking out the irrelevant portion on the printing SCN, the specific charge remains un-specified which means the SCN is invalid and un-sustainable. In order to support his aforesaid submissions, he referred plethora of judgments on each point and requested that the penalty in dispute may be deleted. 5. Ld. Departmental Representative controverted the arguments advanced by the Ld. Counsel of the assessee and he relied upon the orders of the revenue authorities and stated that since the Hon'ble High Court of Delhi vide its order dated 18.11.2011 in quantum appeal has allowed the Appeal in favor of the Revenue and against the assessee holding that the shares in question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , resulted into loss of Rs. 46.35 lacs which was claimed in AY 2003-04 as a revenue loss and was allowed. Accordingly, in AY 2004-05 also, assessee bonafidely claimed the loss as a revenue loss. He submitted this also shows that the claim was totally bonafidely, but the Tribunal was also of the view that the said is capital loss. From the above, it is established that since the claim made bonafidely, but disallowed is not a situation of concealment of income. To support this view, we draw support from the decision of the Hon'ble CIT vs. Reliance Petroproducts Pvt. Ltd. (2010) 322 ITR-158 (SC) wherein the Hon'ble Supreme Court has held that 'where there is no findings that any details supplied by the assessee in its return are fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard, we draw support from the decision in the case of HMA Udyog (P) Ltd. 211 CTR (Del.) 543, where it expenses claimed as revenue expenses but held as capital expenses. It has been held to be a case of debatable issue and no penalty u/s. 271(1)(c) of the I.T. Act. 7. In the background of the aforesaid discussions and respectfully following the aforesaid precedents, we are of the considered view that the assessee has not furnished inaccurate particulars of income or concealed the income and there are no findings of the Assessing Officer and the CIT (Appeals) that the details furnished by the assessee in his return are found to be inaccurate or erroneous or false. Under these circumstances, in our view the penalty in dispute is tot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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