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TMI Blog2016 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course hearing. Thus direct the AO to delete the penalty. - Decided in favour of assessee - I.T.A. No.1917/Mum/2015 - - - Dated:- 27-7-2016 - SHRI JOGINDER SINGH (JM), AND RAJESH KUMAR,(AM) For The Appellant : Shri Jitendra Jain For The Respondent : Shri H M Wanare ORDER Per RAJESH KUMAR, Accountant Member : This is an appeal filed by the assessee and is directed against the order of the Ld. CIT(A)-12, Mumbai dt.30.1.2015 pertaining to A.Y. 2009-10. 2. The only issue raised by the assessee in the grounds of appeal is against the confirmation of penalty of ₹ 1,65,401/- by the ld.CIT(A) as imposed by the AO under section 271(1)(c ) of the Income Tax act, 1961. 3. Facts of the case in brief are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome which warrants initiation of penalty proceedings. However, the AO brushed aside the submissions of the assessee and came to the conclusion that the assessee has furnished inaccurate particulars of income by filing wrong claim u/s 35D and levied penalty equal to 100% of the tax sought to be evaded amounting to ₹ 165,401/- vide order dated 228.1.2014 passed under section 271(1)( c) of the Act. Aggrieved by the order of AO, the assessee preferred an appeal before the ld.CIT(A), who also dismissed the appeal of the assessee by holding that the assessee has furnished inaccurate particulars of income and uphold the action of the AO by relying on the order of Hon ble Apex Court in the case of MAK Data Limited (2013) 38 taxmann.com 448 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) Price Waterhouse Coopes P Ltd V/s CIT (348 ITR 306(SC); b) CIT V/s Reliance Petroproduct Pvt.Ltd -322 ITR 158 (SC); c) CIT V/s Aditya Birla Nova Limited (82 CCH 206 (Bom) etc; 6. The ld. DR vehemently opposed the submissions of the ld. AR and heavily relied on the orders of authorities below. The ld. DR submitted that wrong claim was made with the intention to suppress the profit of the assessee and therefore liable for penalty u/s 271(1)( c ) of the Act which was rightly imposed by the AO and sustained by the ld.CIT(A). Finally urged that the penalty imposed by the AO and confirmed by the ld. CIT(A) be upheld. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any inaccurate particulars. It appears that all happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income. Given the peculiar facts of this case, the imposition of penalty on the assessee is not just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords are plain and simple. In order to expose the assessee to the penalty unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars. Therefore, it is obvious that it must be shown that the conditions under Section 271(1)(c) must exist before the penalty is imposed. There can be no dispute that everything would depend upon the Return filed because that is the only document, where the assessee can furnish the particulars of his income. CIT V/s Atul Mohan Bindal (2009) 225 CTR (SC) 248: (2009) 28 DTR (SC) 1 : (2009) 9SCC 589 followed: Reading the words inaccurate and particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this conclusion.- Sree Krishna Electricals V/s State of Tamil Nadu and Anr (2009) 23 VST 249 (SC) applied; Reliance Petroproducts (P) Ltd (judgment dated 23rd Oct, 2007 of the Gujara High Court in Tax Appeal No.1149 of 2007) affirmed 8. We also find that the decision as discussed and relied upon by the ld.,CIT(A) were perused and find that they were distinguishable on facts and not applicable to the case of the assessee. We, therefore, respectfully following the ratio laid down in the cases cited supra set aside the order of ld.CIT(A) and direct the AO to delete the penalty. 10. In the result the appeal of the assessee is allowed. The above order was pronounced in the open court on 27th July, 2016. - - TaxTMI - TMITax - Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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