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TMI Blog2019 (5) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars of income or concealment of income. See COMMISSIONER OF INCOME-TAX VERSUS RELIANCE PETROPRODUCTS PVT. LTD. [ 2010 (3) TMI 80 - SUPREME COURT] - Decided in favour of assessee. - 1513/Hyd/2018, 1514/Hyd/2018, 1515/Hyd/2018, 1516/Hyd/2018, 1517/Hyd/2018, 1518/Hyd/2018 - - - Dated:- 10-5-2019 - Smt. P. Madhavi Devi, Judicial Member And Shri S.Rifaur Rahman, Accountant Member For the Assessee : Shri K.C. Devdas For the Revenue : Shri Nilanjan Dey, DR ORDER PER BENCH: All these appeals by the respective assessees are against the orders of the CIT (A)-5, Hyderabad, dated 31.05.2018, confirmation of penalty levied by the AO u/s 271(1)(c) of the I.T. Act. Since the common issue is involved in all of these appeals, they were heard together and are disposed of by this common and consolidated order. 2. For the sake of ready reference, the grounds of appeal raised by Mrs. Amita Tulsyan in ITA No.1513/Hyd/2018 are reproduced hereunder: 1. The order passed by the Hon'ble CIT Appeals (5) is unsustainable both on facts and in law. 2. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The AO, took into account, the investigation report of the DIT (Inv.)Kolkata and also considered the statement of Sri Alok Harlalka, Director of M/s. Unno Industries and also Sri Pawan Dalmia, Director of the company, wherein they have stated that the companies in which they are directors are not real companies but are only paper companies and have only issued accommodation entries of bogus LTCG. The AO therefore, issued a show cause notice to the assessee as to why the LTCG claimed as exempt u/s 10(38) should not treated as a bogus LTCG and added to the income of the assessee u/s 68 of the Act. Vide letter dated 29.11.2016, the assessee submitted that the LTCG which was arisen out of sale of shares of M/s. Unno Industries to the tune of ₹ 12,89,690/- is genuine one and that it has paid STT and was therefore, eligible for exemption u/s 10(38) of the Act. It was also submitted that all the relevant details such as purchase of shares, copies of the Bank A/c statements and copy of the Demat accounts were also available and they are accordingly submitted. Further, in order to buy peace with the Department, the assessee voluntarily agreed to offer the capital gain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conclusion that the income has escaped the assessment on receipt of the report of the DIT (Inv.) Hyderabad. Therefore, he had reopened the assessment u/s 147 by issuance of a notice u/s 148 and the assessee, in the re-assessment proceedings, has offered the LTCG to tax. The penalty u/s 271(1)(c), is levied for furnishing of inaccurate particulars of income or concealment of income. In the case before us, we do not find that it is a case of furnishing of inaccurate particulars of income or concealment of income, because, the assessee had declared LTCG and had claimed it as exempt u/s 10(38) of the Act on the ground that shares have suffered STT, but subsequently withdrew the claim of exemption. This may, at most be considered as an unsubstantiated or wrong claim but it cannot be held to be furnishing of inaccurate particulars of income or concealment of income. The Hon'ble Supreme Court in the case of CIT vs. Reliance Petro Products (P) Ltd (2010) 322 ITR 158 has considered the import of these phrases used in the section to hold as under: 8. A glance at this provision would suggest that in order to be covered, there has to be concealment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g would depend upon the Return filed because that is the only document, where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. In Dilip N. Shroff v. Jt. CIT[2007] 6 SCC 329, this Court explained the terms concealment of income and furnishing inaccurate particulars . The Court went on to hold therein that in order to attract the penalty under section 271(1)(c), mens rea was necessary, as according to the Court, the word inaccurate signified a deliberate act or omission on behalf of the assessee. It went on to hold that Clause (iii) of section 271(1) provided for a discretionary jurisdiction upon the Assessing Authority, inasmuch as the amount of penalty could not be less than the amount of tax sought to be evaded by reason of such concealment of particulars of income, but it may not exceed three times thereof. It was pointed out that the term inaccurate particulars was not defined anywhere in the Act and, therefore, it was held that furnishing of an assessment of the value of the property may not by itself be furnishing inaccurate particulars. It was further held that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary,the word inaccurate has been defined as :- not accurate, not exact or correct; not according to truth; erroneous; as an inaccurate statement, copy or transcript. We have already seen the meaning of the word particulars in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the Return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the assessee in its Return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under section 271(1)(c) of the Act. A 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 assessee. Such claim made in the Return cannot amount to the inaccurate particulars . 8. Respectfully following the same, in the case before us, we are satisfied that the necessary condition for initiating and levying penalty u/s 271(1)(c) did not exist Therefore, we are satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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