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TMI Blog2019 (9) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the necessary condition for initiating and levying penalty u/s 271(1)(c) did not exist Therefore, we are satisfied that the penalty u/s 271(1)(c) is not leviable in the case before us. Since the facts and circumstances in all the other cases before us are being similar, following the above, the penalty u/s 271(1)(c) is deleted in all the cases. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and therefore, the Ld. CIT (A) erred in confirming the penalty u/s 271(1)(c) of the Act at ₹ 1,22,00,000/- . (4) Ld. CIT (A) failed to note that the exemption u/s 10(38) was surrendered on the basis of a discussion with the authorities that no penalty proceedings will be initiated / levied and therefore, the Ld. CIT (A) erred in confirming the levy of penalty u/s 271(1)(c) at ₹ 1,22,00,000/- . (5) The Ld. CIT (A) erred in confirming the levy of penalty u/s 271(1)(c) of ₹ 1,22,00,000/- when the appellant in the original return of income filed for the AY 2015-16 on 28/08/2015 admitted a total income of ₹ 66,47,293/- after claiming exemption of income u/s 10(38) of the Act at ₹ 3,51,94,419/- which was clearly mentioned in the Return of Income flied originally. (6) Ld. CIT(A) failed to note that the appellant had neither concealed the particulars of income nor furnished inaccurate particulars in submission of return of income either originally or in response to section 153A of the Act and therefore, erred in confirming the levy of penalty u/s 271(1)(c) of the Act at ₹ 1,22,00,000/- (7) The Ld. CIT (A) failed to note that notice issued U/S 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and assessee has withdrawn 10(38) deduction in the revised return of income, which clearly indicates that the assessee has violated the provisions of income-tax. He submitted that the case relied upon by the assessee in the case of Pr. CIT Vs. Smt. Baisetty Ravathi (supra) is distinguishable on facts. He relied on the decision in the case of Sundaram Finance Ltd. Vs. ACIT, TC (Appeal) Nos. 876 & 877 of 2008, judgment dated 23/04/2018. Further, he submitted that assessee has violated both limbs of section 271(1)(c) of the Act. 7. Considered the rival submissions and perused the material on record. In the case of Smt. Amita Tulsyan and others (supra), the coordinate bench has held as under: "7. Having regard to the rival contentions and the material on record, we find that the assessee, at the time of filing of return itself, has declared the long term capital gain on sale of shares and had claimed the same as exempt from taxation u/s 10(38) of the Act. The AO initially allowed the exemption but subsequently came to the 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In CIT v. Atul Mohan Bindal [2009] 9 SCC 589, where this Court was considering the same provision, the Court observed that the Assessing Officer has to be satisfied that a person has concealed the particulars of his income or furnished inaccurate particulars of such income. This Court referred to another decision of this Court in Union of India v. Dharamendra Textile Processors [2008] 13 SCC 369, as also, the decision in Union of India v. Rajasthan Spg. & Wvg. Mills [2009] 13 SCC 448 and reiterated in para 13 that :- "13. It goes without saying that for applicability of section 271(1)( c), conditions stated therein must exist." 8. 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. When such particulars are found to be inaccurate, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case (supra) was overruled by this Court in Dharamendra Textile Processors' case (supra), was that according to this Court the effect and difference between section 271(1)(c) and section 276C of the Act was lost sight of in case of Dilip N. Shroff (supra). However, it must be pointed out that in Dharamendra Textile Processors' case (supra), no fault was found with the reasoning in the decision in Dilip N. Shroff's case (supra), where the Court explained the meaning of the terms "conceal" and "inaccurate". It was only the ultimate inference in Dilip N. Shroff's case (supra) to the effect that mens rea was an essential ingredient for the penalty under section 271(1)(c) that the decision in Dilip N. Shroff's case (supra) was overruled. 9. We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Webster's Dictionary, 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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