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TMI Blog2023 (6) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal. The identical situation is clearly discernable from two of the assessment orders wherein, the AO by relying and referring to certain judgments and factual matrix of the case recalculated the long term capital gain and allowed share to the assessee u/s 54 of the Act and remaining part was disallowed making addition in the hands of the assessee. Penalty u/s 271(1)(c) cannot be lead on the assessment by alleging that the assessee had concealed particulars of income and also furnished inaccurate particulars of income particularly when the AO himself has in the assessment order at page 3 only alleged that the assessee had deliberately or without any reasonable cause concealed the particulars of income without making further all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Tribunal was decided in favour of the revenue was based on interpretation of provision of section 54F of the Act after considering the various judicial pronouncements and particularly assessee s own case and therefore, it is a case where the assessee is making a claim which was not sustainable in law by itself, will not amounting to furnishing of inaccurate particulars of income of the assessee therefore, no penalty is leviable on the assessee. Ld counsel submitted that in the present case, the AO denied excess claim of exemption u/s 54 of the Act which lead to confirmation of addition and impugned penalty order. Ld counsel submitted that the penalty levied by the AO and sustained by the ld CIT(A) cannot be held as valid and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appa (91 ITD 53). 5.1 The assessee has furnished all particulars on facts and in law. Nowhere has the AO said that the particulars furnished by the assessee are inaccurate or in correct. He levied penalty only because judicial decisions are against the assessee. It is not the case of the revenue that the capital gain was suppressed or concealed. The particulars furnished were not faulted or found inadequate and incorrect. The taxable capital gain is shown in the return of income and non-taxable capital gain claimed according to the assessee, which is explained elaborately above was detailed in the computation sheet that accompanied the return of income. 5.2 Even assuming the assessee s claim is wrong; the Tribunal order with regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely to harass the assessee. The approach of the Assessing Officer in this behalf must be fair and objective. 5.3 Taking into account the facts and circumstances of case, since the assessee had disclosed fully the capital gains transaction in the return of income, it cannot be said that the assessee has concealed income. Making a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. In the instant case, as stated earlier, the assessee has relied on several judgments which interpreted provisions of section 54 and 54F as being available to more than one house, based on the definition of a which could mean many or more than one as held by the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate the penalty proceedings u/s 271(1)(c) of the Act and imposed penalty by holding that the assessee has no explanation regarding concealed income as held during the course of assessment proceedings and willfully furnishing the inaccurate particulars of income to the said explanation, therefore, she is liable to pay penalty u/s 271(1)(c) of the Act. therefore, I find identical facts and circumstances of the case quite similar and identical to the case of ITO Vs. M. Narayanswami (supra) wherein, the tribunal held that the assessee has furnished all particulars regarding sale of immovable property and claimed exemption u/s 54 of the Act which was partly denied by the AO. In such a situation the claim of deduction u/s 54 of the Act centres a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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