2018 (8) TMI 926

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....nal, New Delhi, Bench 'F' (hereinafter referred to as 'the Tribunal') in Income Tax Appeal No.1994/DL/2010 which was filed by the assessee against the order dated 26.03.2010 passed by the CIT(A). Assessment year involved in the present appeal is 2004-05. 2.The following questions of law have been framed in the memo of appeal for decision by this Court: (i)Whether on the facts and circumstances of the case the ITAT was right in confirming the penalty under Section 271(i)(c) of the Act. (ii)Whether on the facts and circumstances of the case the I.T.A.T. was correct to confirmed the penalty under Section 271(1)(c) of the Act on the ground that the appellant is wrongly claimed loss amounting to Rs. 84,78,052....

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....Section 271(1)(c) of the Act were to be initiated and issued the penalty notice to the assessee. 4. Aggrieved by the assessment order, the assessee filed an appeal before the CIT(A) who dismissed the appeal of the assessee. 5. The show cause notice (hereinafter referred to as 'the SCN') under Section 271(1)(c) of the Act was issued on 19.03.2009 to which the appellant-assessee filed its reply on 23.03.2009. In reply to the SCN, the assessee said that despite the additions, no tax was payable by the assessee as per the AO's order under Section 154 of the Act dated 27.03.2007 in which the AO had allowed the entire amount as deduction under Section 80-IB(9) of the Act and, therefore, income was assessed as Nil in the order pa....

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.... the appellant-assessee submits that the assessee could have wrongly claimed Rs. 84,78,057/-, loss incurred on sale of assets as business loss in the Profit and Loss account which was a capital loss. However, the assessee had disclosed every detail in the return which was before the AO. Nothing was concealed from the assessment authority. There was no concealment of particulars of its income in any manner. Only the assessee had treated an amount as business loss which was to be treated as capital loss. This was not an attempt to conceal the income, therefore, penalty under Section 271(1)(c) of the Act was not imposable on these facts. 11. Learned counsel for the assessee further submits that in view of the order passed under Section 154 ....

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..... Against the aforesaid judgment of Delhi High Court the SLP was dismissed by the Supreme Court in limine. 14. We have considered the rival submissions carefully. 15. Section 271(1)(c) of the Act reads as under:- "271.1. If the (Assessing) Officer or the (commissioner (Appeals)) (or the (Principal Commissioner or) Commissioner in the course of any proceedings under this Act, is satisfied that any person- .... (c) has concealed the particulars of his income or furnished inaccurate particulars of such income ....." 16. Thus, under the provisions of Section 271(1)(c) of the Act, there has to be concealment of the particulars of income by the assessee or he should have furnished inaccurate particular....