TaxTMI 
TaxTMI 
2015 (5) TMI 547
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....n ITA No. 4488/Del/2013 dated 24.4.2015 for AY 2009-10 and submitted that in the similar set of facts and circumstances, the deletion of penalty by the CIT(A) in the case of assessee's group company i.e. ACIT vs M/s Mehrotra Invofin India Pvt. Ltd. has been upheld by the Tribunal dismissing the appeal of the revenue and thus, the present case of the assessee is squarely covered in favour of the assesee by this order (supra). 4. Ld. DR supported the penalty order and submitted that the CIT(A) deleted the penalty without any cogent and justified basis. However, ld. DR did not seriously object to the fact that in the case of M/s Mehrotra Invofin India Pvt. Ltd. (supra), the Tribunal has upheld the order of the CIT(A) deleting the penalty in the similar set of facts and circumstances. 5. On careful consideration of above, from vigilant reading of the order of the Tribunal in the case of ACIT vs M/s Mehrotra Invofin India Pvt. Ltd., we note that the Tribunal upheld the order of the CIT(A) approving the deletion of penalty by the first appellate authority with following observations and conclusion:- "8. We have heard both the parties and perused the relevant records available wi....
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....evidence to establish that the assessee had concealed the amount or furnished inaccurate particulars and this onus is to be discharged by the department. (iv) The Assessing officer while considering levy of penalty should consider whether the assessee has been able to discharge his part of the burden. He should not begin with the presumption that the assessee is guilty. (v) Though penalty proceedings under the income-tax law may not be criminal in nature, they are still quasi-criminal requiring the Department to establish that the asessee has concealed his income. (vi) It has to be understood that the Explanation to section 271(l)(c) is an exception to the general rule raising a legal fiction by which the burden which is ordinarily with the Department is sought to be placed on the assessee. This burden on the assessee is subject to "conditions precedent", which are required to be satisfied before the Explanation could be applied. It was also pointed out as held by Hon'ble Supreme Court in K. C. Builders Vs AC/T {2004} {265 ITR 562} {SC} that "deliberateness" is implied in the concept of concealment. 8.4 However after the decision laid down in Dilip N. Shroff (Supra),....
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.... appellant has furnished inaccurate particulars so as to call for the penal action under Section 271(1)(c). 8.12 We find that assessee had earned a dividend income of Rs. 5,14,50,508/-, which is an exempt income. The assessee on its own disallowed a sum of Rs. 5,14,505, under section 14A. However, the AO was not satisfied with the appellant's quantum of disallowance and he accordingly, applied Rule BD and computed the disallowance. 8.13 It is also an established proposition that the assessment proceedings a penalty proceedings are two different proceedings. An issue may call for a addition to income under section 143(3) of the I.T. Act, but in order to invoke a penalty, the AO has to walk little extra mile to prove that there is failure on the part of the assessee to "conceal the particulars of income" or "furnishing of inaccurate particulars." The mere non acceptance of appellant's submissions and without any positive evidence from the AO that assessee has "concealed" or "furnishing of inaccurate particular" didn't ipso facto warrant penalty under Section 271(1)(c). It is also seen that in the present case that the dividend income earned by the appellant is to th....
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....ing would depend upon the return filed by the assessee, 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. To attract penalty, the details supplied in the return must not be accurate, not exact or correct, not according to the truth or erroneous. Where there is no finding that any details supplied by the assessee in its return are found to be incorrect or erroneous or false there is no question of inviting the penalty under Section 271 (l)(c). A mere making of a claim, which is not sustainable in law by itself will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars." 8.17 We find that the above view of the Apex court in the case of Reliance Petroproduct has been followed by jurisdictional Delhi High Court and also Delhi Tribunal in numerous subsequent cases. 8.18 We are of the view that addition has been made by the AO on the basis of difference of opinion, as accordingly to him Rule 8D is applicable and whereas as per the appellant Rule....