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TMI Blog2016 (5) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... would not amount to furnishing of inaccurate particulars of income - Decided in favour of assessee - I.T.A. No. 6619/Del/2015 - - - Dated:- 5-5-2016 - Shri H. S. sidhu, judicial member And Shri Prashant Maharishi, Accountant Member For the Assessee : Sh. Amit Srivastava, AR For the Department : Sh. R.S. Negi, Sr. DR ORDER PER H.S. SIDHU, JM This appeal by the Assessee is directed against the order of the Ld. Commissioner of Income Tax (Appeals)-21, New Delhi dated 10.9.2015 pertaining to assessment year 2011-12. 2. The assessee has raised so many grounds challenging the order of the Ld. Commissioner of Income Tax (A) dated 10.9.2015 wherein he has confirmed the penalty of ₹ 10,98,721/- levied u/s. 271(1)(c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice uls 274 read with section 271(1)(c) was issued on 31/03/2014 allowing opportunity to the assessee of being heard. A fresh show cause notice was also issued on 28/08/2014 in response to which the assessee appeared and filed written submission dated 10/04/2014. In consideration of entire facts and circumstances of the case, the AO held assessee guilty of furnishing inaccurate particulars of income which attracted the penal provisions of section 271(1)(c), and accordingly levied a penalty of RS.10,98,721/- vide order dated 26/09/2014. Aggrieved with the penalty order, assessee appealed before the Ld. CIT(A), who vide impugned order dated 10/9/2015 has upheld the penalty and accordingly, dismissed the appeal of the Assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue authorities alongwith documentary evidences filed by the assessee in the shape of paper book and the case law cited by him. From the records, it reveals that the assessee is a Resident and Ordinarily Resident individual for the assessment year (AY) 2011-12. He derived income from salary and from other sources. He is also a resident of USA for the period April 1 2010 to June 30 2010. As the assessee may be considered liable to tax both in India and US as per the tax laws in each jurisdiction, a determination of the residential status as per the India - USA Double Taxation Avoidance Agreement (Treaty) has to be done based on the tie breaker analysis as contained in Article 4(2) of the Treaty. Based on the tie breaker analysis as containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te particulars of income which attracted the penal provisions of section 271(1)(c), and accordingly levied a penalty of RS.10,98,721/- vide order dated 26/09/2014 and in appeal before the Ld. CIT(A), the Ld. CIT(A) vide impugned order dated 10/9/2015 has upheld the penalty in dispute. 7.2 We also find that section 271(1)(c) postulates imposition of penalty for furnishing of inaccurate particulars and concealment of income. On the facts and circumstances of this case the assessee s conduct cannot be said to be contumacious so as to warrant levy of penalty. 7.3 In this regard, we find that assessee s counsel reliance from the Hon ble Apex Court decision in the case of CIT vs. Reliance Petro Products Ltd. in Civil Appeal No. 2463 of 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercised judicially and on a consideration of all the relevant circumstances. 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 bonafide belief that the offender is not liable to act in the manner prescribed by the statute. 8. In the background of the aforesaid discussions and precedents, we find that the levy of penalty in this case is not justified. Accordingly, we set aside the orders of the authorities below and delete the levy of penalty in dispute. 9. In the result, the appeal filed by the Assessee stands allowed. Order pronounced in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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