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TMI Blog2018 (12) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... found applicable to the case in hand and the distinguishing features given in the grounds of appeal are not found tenable in the eyes of law. It is also worth consideration that at the initial stage of original assessment, the assessee had claim similar loss, which was partly accepted by AO and penalty proceedings initiated at that point of time were also dropped. Therefore, there appear different opinions of revenue authorities at different points of time. As relying on decision in CIT vs. Reliance Petro Products Pvt. Ltd, [2010 (3) TMI 80 - SUPREME COURT] where it has been held that “mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot appreciating the fact that the said case did not lay down any general proposition to the effect that penalty is not to be levied in all cases of so-called error. 1(ba). The Ld CIT (A) erred in not appreciating the fact that the decision in the case of Price Water House Coopers turned on the peculiar fact situation involved therein, as, a) the factum of non-allowability of the item was prominently mentioned in the Tax Audit Report and b) the assessee filed a revised return immediately after the omission came to its notice. As against this, in the present case, the assessee was apparently aware of that the claim of loss was wrong and did not take any suo motu action for correcting the error either at the time of original assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission made vide letter dated 5.1.2010, the AO dropped the penalty proceedings vide his order dated 7.1.2010. Thereafter, the Assessing Officer on the basis of some information in his possession, reopened the case vide notice u/s 148 dated 27.3.2012. The AO recorded the following reasons: The assessee is a Non-Resident. For the year under reference, the assessment was done u/s 143(3) at loss of ₹ 16,78,25,520/-. The assessee has claimed an expenditure of ₹ 61,21,337/ -on account of loss on sale of fixed assets. As this is a capital loss to the company, it should have been added back to the income of the assessee. This resulted in over assessment of loss of ₹ 61,21,337/- involving potential tax effect, of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer initiated penalty proceedings u/s. 271(1)(c) of the Act and after considering the explanation of the assessee, a penalty of ₹ 25,62,569/- was imposed against the assessee. In appeal, the ld. CIT(A) deleted the penalty vide impugned order. Aggrieved, the Revenue is in appeal before the Tribunal. 3. The learned DR reiterating the grounds of appeal submitted that the ld. CIT(A) was not justified in deleting the penalty ignoring the fact that the decisions relied on by first appellate authority are distinguishable on facts. It was submitted that there was no bona fide on the part of assessee to claim a capital loss as revenue loss. Therefore, the assessee has furnished inaccurate particulars of income and therefore, the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e auditor has reported that there is no expenditure of capital nature which has been debited to the profit and loss account. Therefore, in our considered opinion, the claim of loss made on the basis of tax audit report cannot be said to be non-bona fide. We have also gone through the decisions relied by the ld. CIT(A) and we find that in the present scenario, the said decisions are found applicable to the case in hand and the distinguishing features given in the grounds of appeal are not found tenable in the eyes of law. It is also worth consideration that at the initial stage of original assessment, the assessee had claim similar loss, which was partly accepted by the Assessing Officer and penalty proceedings initiated at that point of tim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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