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TMI Blog2022 (2) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... tune of Rs. 18,74,19,661 under Section 271(1)(c) of the Income-tax Act, 1961 ( for short "Act" ). 2. Briefly stated the facts necessary for adjudication of the controversy at hand are "on the basis of assessment framed under Section 143(3) of the Income-tax Act, 1961 at the total income of Rs.-2,62,96,57,525 by making disallowance of deduction claimed by the assessee on account of non-compete fee to the tune of Rs. 47,71,42,665," and on account of signages and ice boxes to the tune of Rs. 8,99,15,261, written off initiated penalty proceedings under Section 271(1)(c) of the Act. Declining the contentions raised by the assessee, Assessing Officer levied a penalty of Rs. 18,74,19661 @ 100% of the tax sought to be evaded under Section 271(1)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by Assessing Officer and contended that since the assessee company has lodged inadmissible claim, it amounts to furnishing of inaccurate particulars sufficient to levy the penalty under Section 271(1)(c) of the Act. 8. However, on the other hand, learned AR for the assessee to repel the arguments addressed by learned Departmental Representative contended inter alia that during the course of assessment proceedings, assessee company has not furnished any inaccurate particulars during assessment proceedings rather made a bona fide claim on the basis of audited financials; that when quantum appeal is lying admitted in the Hon'ble High Court, penalty is not leviable; that no penalty is leviable on the basis of disallowance of "no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was not the case of concealment of the income. That was not the case of the Revenue either. It was an admitted position in the instant case that no information given in the return was found to be incorrect or inaccurate. It was not as if any statement made or any detail supplied was found to be factually incorrect. Hence, at least, prima facie, the assessee could not be held guilty of furnishing inaccurate particulars. The Revenue argued that submitting an incorrect claim in law for the expenditure on interest would amount to giving inaccurate particulars of such income. Such cannot be the interpretation of the concerned words. The words are plain and simple. In order to expose the assessee to the penalty unle3ss the case is strictly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars of one's income as well as furnishing of inaccurate particulars of income. Such contention could not be accepted as the assessee had furnished all the details of its expenditure as well as income in its return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that, by itself, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernational (P) Ltd.: 431 ITR 118 (Del.) and CIT vs. Nayan Builders & Developers: 368 ITR 665 (Del.) 12. Ratio of the aforesaid decisions relied upon by learned AR for the assessee is that when substantial question of law has been framed by the Hon'ble High Court in an appeal preferred by the assessee challenging quantum order, the issue has become debatable, the impugned penalty could not survive. 13. We have perused the order passed by the Hon'ble High Court in case of quantum of appeal filed by the assessee challenging the order passed by the Tribunal in which substantial question of law has been framed vide order dated 24.9.2015 in ITA No. 22/2015 as under: (a) Whether on the facts and in the circumstances of the case, the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be a ground to impose penalty under Section 271(1)(c) of the Act." So when issue as to allowance of non-compete fee as revenue expenditure or capital expenditure is debatable, penalty under Section 271(1)(c) is not leviable. 17. In view of what has been discussed above, we are of the view that Assessing Officer has failed to bring on record if assessee has furnished inaccurate particulars income at any stage of assessment proceedings, hence, the question framed in preceding para is decided in favour of the assessee. So finding no illegality or perversity in the impugned order passed by the learned Commissioner of Income-tax(Appeals) deleting the penalty levied by Assessing Officer under Section 271(1)(c) of the Act, the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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