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TMI Blog2017 (11) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of assessment proceedings or that the Assessing Officer had dug out some information which was not furnished by the assessee. Apex Court in the case of Commissioner of Income Tax vs Reliance Petroproducts Pvt. Ltd. (2010 (3) TMI 80 - SUPREME COURT ) has also held that mere making of claim which is unsustainable in law, by itself, will not amount to furnishing of inaccurate particulars regarding the income of the assessee - Decided in favour of assessee. - ITA No. 4391/Del /2014 - - - Dated:- 31-10-2017 - SHRI B.P.JAIN, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER For The Appellant : Shri B.K. Anand, Adv. For The Respondent : Shri Surenderpal, Sr. DR ORDER PER SUDHANSHU SRIVASTAVA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Noida taken on lease by the assessee. It arose on account of treatment of the said amount while computing the profit for the year. The assessee claimed the entire expenses of ₹ 15,66,721/- as a business expenditure being revenue in nature whereas the Assessing Officer was of the opinion that the expenditure was capital in nature and, therefore, after allowing ₹ 2,35,008/- as depreciation, the Assessing Officer added back the balance of ₹ 13,31,713/- to the income of the assessee. Subsequently, penalty of ₹ 4,52,648 was levied u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter called 'the Act') on this amount. This penalty was confirmed by the ld. Commissioner of Income Tax(A) and now the assessee has appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital expenditure and it proved that the Department had accepted the transaction as being a genuine one incurred wholly and exclusively for the purposes of profession. Thus, it was not a case of concealment of any income nor was it a case of furnishing inaccurate particulars of income. It was submitted that the Assessing Officer has not pointed out anywhere in the order that any information in relation to the expense account was inaccurately stated. It was also stated that no penalty for concealment of income was leviable merely because of difference in opinion as regards treatment of expenses as being of capital or revenue in nature. Ld. AR also placed reliance on numerous case laws to support his proposition that penalty u/s 271(1)(c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the assessee. 5. We have heard the rival submissions and perused the material available on record. The facts of the case are not disputed. It is a settled law that assessment and penalty proceedings are distinct and although the findings recorded in the assessment proceedings may constitute evidence in the course of penalty proceedings, they cannot be regarded as conclusive. This is the law enunciated by the Hon ble Apex Court in the case of Commissioner of Income Tax vs Anwar Ali reported in 76 ITR 696 (S.C.), Commissioner of Income Tax vs Khoday Eswarsa Sons (1972) 83 ITR 369 (S.C.), Anantharam Veerasinghaiah Co. Vs C.I.T. reported in 123 ITR 457 (SC). In the case of Commissioner of Income Tax vs Bacardi Martini India Ltd. report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culars/concealing the particulars of income. The Hon ble Apex Court in the case of Commissioner of Income Tax vs Reliance Petroproducts Pvt. Ltd. reported in 322 ITR 158 (SC) has also held that mere making of claim which is unsustainable in law, by itself, will not amount to furnishing of inaccurate particulars regarding the income of the assessee. We are of the considered opinion that the reliance of the Department on the judgment of the Hon'ble Delhi High Court in the case Zoom Communication (P) Ltd. does not come to the aid of the Department in this particular case for the reason that the Hon'ble Delhi High Court has also duly considered the judgment of the Hon'ble Apex Court in the case of Reliance Petroproducts Pvt. Ltd. (s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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