M. Narayanaswamy, Bangalore v. ITO, Bangalore

CO 53/BANG/2010 | 2002-2003
Pronouncement Date: 29-10-2010 | Result: Dismissed

Appeal Details

RSA Number 5321123 RSA 2010
Bench Bangalore
Appeal Number CO 53/BANG/2010
Duration Of Justice 21 day(s)
Appellant M. Narayanaswamy, Bangalore
Respondent ITO, Bangalore
Appeal Type Cross Objection
Pronouncement Date 29-10-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 29-10-2010
Assessment Year 2002-2003
Appeal Filed On 08-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI GEORGE GEORGE K JUDICIAL AND SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER ITA NO.723(BANG)/2010 (ASSESSMENT YEAR: 2002-03) INCOME-TAX OFFICER WARD 7(2) BANGALORE. VS. APPELLANT SHRI M.NARAYANASWAMY NO.490 PRAKRUTHI 7 TH CROSS 5 TH MAIN JAGADISHNAGAR NEW THIPPASANDRA BANGALORE-75. RESPONDENT AND C ROSS OBJN.NO.53(BANG)/2010 (IN ITA NO.723(BANG)/2010) (ASSESSMENT YEAR: 2002-03) SHRI M.NARAYANASWAMY BANGALORE. VS. CROSS OBJECTOR INCOME-TAX OFFICER WARD 7(2) BANGALORE. RESPONDENT REVENUE BY: SHRI PRATHAP SINGH. ASSESSEE BY : SHRI C.J. BRITO. O R D E R PER GEORGE GEORGE K JM: THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARISE OUT OF THE ORDER OF THE CIT(APPE ALS)-III BANGALORE DATED 9-2-2010. THE ORDER OF THE CIT(A) EMANATES ITA 723 & CO 53(BANG)/2010 PAGE 2 OF 13 FROM THE ORDER OF THE AO LEVYING PENALTY U/S 271(1) (C) OF THE INCOME-TAX ACT 1961 [HEREINAFTER REFERRED TO AS 'T HE ACT']. 2. THE SOLITARY ISSUE THAT IS RAISED IN THIS APPEA L IS WHETHER THE CIT(A) IS JUSTIFIED IN DELETING THE PEN ALTY LEVIED U/S 271(1)(C) AMOUNTING TO RS.7 02 281/-. BRIEF FACTS OF THE CASE ARE AS FOLLOWS: 2.1 THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSME NT YEAR UNDER CONSIDERATION VIZ. 2002-03 THE ASSESSE E FILED RETURN OF INCOME DISCLOSING TOTAL INCOME OF RS.6 81 278/-. THIS INCLUDED CAPITAL GAIN OF RS. 5 12 822/-. THE ASSESS EE IN ALL MADE TOTAL CAPITAL GAIN OF RS.41 20 807/- OUT OF WH ICH RS.5 12 822/- WAS OFFERED TO CAPITAL GAIN. THE RETU RN OF INCOME WAS ACCOMPANIED BY A DETAILED STATEMENT SHOWING THE COMPUTATION OF THE ENTIRE CAPITAL GAIN ASSESSABLE A ND AS WELL AS NON-ASSESSABLE PORTION ON ACCOUNT OF DEDUCTION UNDE R SECTION 54F ARISING FROM THE SAME SINGLE PROPERTY SUBJECTED TO JOINT DEVELOPMENT. THE ASSESSING OFFICER HOWEVER RESTRICT ED THE EXEMPTION UNDER SECTION 54F TO ONLY ONE FLAT OUT OF THE 10 FLATS CLAIMED BY THE ASSESSEE DISAGREEING WITH THE VARIOU S CASE LAWS CITED BY THE ASSESSEE RELATING TO EXEMPTION UNDER S ECTION 54/ 54F RELATING TO MEANING & INTERPRETATION OF THE WOR D A USED IN THE SAID PROVISION OF THE ACT IN SUPPORT OF THE CLA IM FOR EXEMPTION OF MORE THAN ONE FLAT UNDER SECTION 54 F. THE VARIOUS CASES CITED BY THE ASSESSEE IN SUPPORT OF T HE INTERPRETATION THAT THE EXEMPTION WOULD BE AVAILABL E FOR MORE THAN ONE FLAT WERE AS FOLLOWS. ITA 723 & CO 53(BANG)/2010 PAGE 3 OF 13 1) SMT.FULWANTI C RATHOD V. ITO I.T.A. NO 1092/M/1995 DATED 3-5-2002 2) K.G. VYAS VS. 7 TH ITO (16 ITD 195)(BOM) 3) SHRI. KHOOBCHAND MADHAVDAS MAKHIJA IN ITA NO. 659/2001/ 98-99 DATED 14-12-2001 4) SHRI. RATANCHAND MURARKA IN ITA NO.4485/MUM/1999 DATED 12-09-2001 THE QUANTUM ASSESSMENT WAS AFFIRMED BY THE TRIBUNAL . 2.2 THE AO LEVIED PENALTY ON THE AFFIRMATION OF TH E QUANTUM ASSESSMENT VIDE HIS ORDER DATED 27-3-2007. THE PENALTY LEVIED WAS TO THE EXTENT OF 100% OF THE AMO UNT OF TAX SOUGH TO BE EVADED AMOUNTING TO RS.7 02 281/-. THE RELEVANT FINDING OF THE AO IN THE PENALTY ORDER READS AS FOL LOWS: FURTHER FROM THE RETURN OF INCOME FILED AND THE DETAILS FURNISHED AT THE TIME OF ASSESSMENT PROCEEDINGS IT IS SEEN THAT THE ASSESSEE HAS NOT DISCLOSED TRUE AND CORRECT TAXABLE INCOME AS IT IS MANDATORY ON THE PART OF THE ASSESSEE TO DISCLOSE TRUE AND CORRECT TAXABLE INCOME AS PER THE PROVISIO NS OF INCOME-TAX. HENCE THERE IS CONCEALMENT OF PARTICULARS/INCOME/PROVISIONS OF LAW ETC. IN THE LI GHT OF THE FINDINGS GIVEN BY THE HON. COMMISSIONER OF INCOME-TAX (A) AND HON. ITAT BANGALORE BENCH BANGALORE AND THE DISCUSSION MADE AS ABOVE I LEVY PENALTY U/S 271(1)(C) OF IT ACT. THE MINIMUM PENALTY AS PER SECTION 271(1)(C) OF IT ACT IS 100% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED AND MAXIMUM PENALTY IS 300% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED. I LEVY MINIMUM 100% OF THE AMOUNT OF TAX SOUGH TO BE EVADED. THE MINIMUM ITA 723 & CO 53(BANG)/2010 PAGE 4 OF 13 PENALTY @ 100% ON RS.35 11 407/- WORKS OUT AT RS.7 02 281/- 3. ON FURTHER APPEAL THE CIT(A) EXAMINED THE ENTIR E FACTS OF THE CASE CONSIDERED THE GROUNDS OF APPEAL RAISE D BEFORE HIM AND ALSO THE DETAILED WRITTEN SUBMISSIONS MADE BEFO RE HIM PARTICULARLY PARA. 8 OF THE WRITTEN SUBMISSION DEAL ING WITH THE DECISION OF KARNATAKA HIGH COURT IN THE CASE OF CIT VS. ANANDA BASAPPA [2009] 309 ITR 329 WHICH WAS IN FAVOUR OF THE ASSESSEE AND HELD AS FOLLOWS IN PARAGRAPH NOS. 6.2 7 8 8.1 8.2 AND 8.5: 6.2 THE APPELLANT PLEADED BEFORE ME THAT THE MATTER CARRIED TO APPEAL WAS ONLY WITH RESPECT TO INTERPRETATION OF LAW AND NOT WITH RESPECT TO ASSIMILATION OF FACTS. IT WAS SPECIFICALLY STATED T HAT THE ISSUE IS DEBATABLE ONE AND NO CERTAINTY HAS ARISEN SO FAR ABOUT THE INTERPRETATION. THE APPELLANT FURTHER PLEADED THAT THE AO COMMITTED AN ERROR IN STATING THAT THE ASSESSEE HAS NOT DISCLOSED TRUE AND CORRE CT TAXABLE INCOME. THE PROVISIONS OF SECTION 271(1)(C ) DOES NOT INCORPORATE THE WORD TAXABLE. ACCORDING TO THE APPELLANT HE HAD DISCLOSED THE ENTIRE INCOME ARISING FROM THE JOINT DEVELOPMENT AGREEMENT AND CLAIMED EXEMPTION AS PER THE PROVISIONS OF THE ACT. THE APPELLANT ADOPTED A VIEW FAVORABLE TO HIM IN INTERPRETATION OF PHRASE A USED IN SECTION 54F OF THE INCOME TAX ACT BY RELYING ON VARIOUS JUDGMENTS. IN BRIEF THE SUBMISSION MADE BY THE APPELLANT DURING T HE APPELLATE PROCEEDINGS ARE AS UNDER : ITA 723 & CO 53(BANG)/2010 PAGE 5 OF 13 7.0 THE KARNATAKA HIGH COURT IN CIT VS. D. ANANDA BASAPPA [2009] 309 ITR 329 HAS CONSIDERED THE FOLLOWING QUESTION OF LAW WHETHER THE TRIBUNAL WAS CORRECT IN HOLDING THAT OUT OF THE SALE PROCEEDS OF THE PROPERTY BEARING NO. 9 BRUNTON ROAD BANGALORE OWNED BY THE ASSESSEE HE COULD INVEST THE SAME IN TWO RESIDENTIAL FLATS BEARING NO. G-01 AND G-02 AN D CLAIM DEDUCTION IN RESPECT OF BOTH THESE FLATS IN ACCORDANCE WITH SECTION 54 READ WITH SECTION 54F OF THE ACT FOR THE ASSESSMENT YEAR 1996-97 ? THE HONBLE KARNATAKA HIGH COURT HELD AS FOLLOWS. A PLAIN READING OF THE PROVISION OF SECTION 54(1) OF THE INCOME-TAX ACT DISCLOSES THAT WHEN AN INDIVIDUAL-ASSESSEE OR HINDU UNDIVIDED FAMILY- ASSESSEE SELLS A RESIDENTIAL BUILDING OR LANDS APPURTENANT THERETO HE CAN INVEST CAPITAL GAINS FOR PURCHASE OF RESIDENTIAL BUILDING TO SEEK EXEMPTION OF THE CAPITAL GAINS TAX. SECTION 13 OF THE GENERAL CLAUSES ACT DECLARES THAT WHENEVER THE SINGULAR IS USED FOR A WORD IT IS PERMISSIBLE TO INCLUDE THE PLURAL. THE CONTENTION OF THE REVENUE IS THAT THE PHRASE A RESIDENTIAL HOUSE WOULD MEAN ONE RESIDENTIAL HOUSE AND IT DOES NOT APPEAR TO THE CORRECT UNDERSTANDING. THE EXPRESSION A RESIDENTIAL HOUSE SHOULD BE UNDERSTOOD IN A SENSE THAT BUILDING SHOULD BE OF RESIDENTIAL IN NATURE AND A SHOULD NOT BE UNDERSTOOD TO INDICATE A SINGULAR NUMBER. THE COMBINED READING OF SECTIONS 54(1) AND 54F OF THE INCOME-TAX ACT ITA 723 & CO 53(BANG)/2010 PAGE 6 OF 13 DISCLOSES THAT A NON RESIDENTIAL BUILDING CAN BE SOLD THE CAPITAL GAIN OF WHICH CAN BE INVESTED IN A RESIDENTIAL BUILDING TO SEEK EXEMPTION OF CAPITAL GAIN TAX. HOWEVER THE PROVISO TO SECTION 54 OF THE INCOME- TAX ACT LAYS DOWN THAT IF THE ASSESSEE HAS ALREADY ONE RESIDENTIAL BUILDING HE IS NOT ENTITLED TO EXEMPTION OF CAPITAL GAINS TAX WHEN HE INVESTS THE CAPITAL GAIN IN PURCHASE OF ADDITIONAL RESIDENTIAL BUILDING. WHEN A HINDU UNDIVIDED FAMILYS RESIDENTIAL HOUSE IS SOLD THE CAPITAL GAIN SHOULD BE INVESTED FOR THE PURCHASE OF ONLY ONE RESIDENTIAL HOUSE IS AN INCORRECT PROPOSITION. AFTER ALL THE HINDU UNDIVIDED FAMILY PROPERTY IS HELD BY THE MEMBERS AS JOINT TENANTS. THE MEMBERS KEEPING IN VIEW THE FUTURE NEEDS IN EVENT OF SEPARATION PURCHASE MORE THAN ONE RESIDENTIAL BUILDING IT CANNOT BE SAID THAT THE BENEFIT OF EXEMPTION IS TO BE DENIED UNDER SECTION 54(1) OF THE INCOME-TAX ACT. ON FACTS IT IS SHOWN BY THE ASSESSEE THAT THE APARTMENTS ARE SITUATED SIDE BY SIDE. THE BUILDER HAS ALSO STATED THAT HE HAS EFFECTED MODIFICATION OF THE FLATS TO MAKE IT AS ONE UNIT BY OPENING THE DOOR IN BETWEEN TWO APARTMENTS. THE FACT THAT AT THE TIME WHEN THE INSPECTOR INSPECTED THE PREMISES THE FLATS WERE OCCUPIED BY TWO DIFFERENT TENANTS IS NOT THE GROUND TO HOLD THAT THE APARTMENT IS NOT A ONE RESIDENTIAL ITA 723 & CO 53(BANG)/2010 PAGE 7 OF 13 UNIT. THE FACT THAT THE ASSESSEE COULD HAVE PURCHASED BOTH THE FLATS IN ONE SINGLE SALE DEED OR COULD HAVE NARRATED THE PURCHASE OF TWO PREMISES AS ONE UNIT IN THE SALE DEED IS NOT THE GROUND TO HOLD THAT THE ASSESSEE HAD NO INTENTION TO PURCHASE THE TWO FLATS AS ONE UNIT. FOR THE REASONS AND DISCUSSION MADE ABOVE THE SUBSTANTIAL QUESTIONS OF LAW ARE ANSWERED IN FAVOUR OF THE ASSESSEE. THE APPEAL IS DISMISSED. 8.0 IT IS AN ADMITTED FACT THAT THERE EXISTED ADE QUATE AMBIGUITY IN THE INTERPRETATION OF LAW PREVAILING A T THE TIME WHEN THE RETURN WAS FILED SINCE INCONSISTENT VIEWS WERE EXPRESSED BY DIFFERENT BENCHES ON THIS MATTER. THE APPELLANT CANNOT BE HELD TO HAVE CONCEALED ANY PARTICULARS OR FURNISHED INACCURATE PARTICULARS OF JOINT DEVELOPMENT AGREEMENT MERELY BECAUSE HE CLAIMED A DEDUCTION BASED ON A VIEW THAT WAS FAVORABLE TO HIM WHEN TWO DIVERGENT VIEWS WERE POSSIBLE. THE AO ALS O HAS CONCEDED THAT ALL THE RELEVANT PARTICULARS OF COMPUTATION OF CAPITAL GAIN WAS FURNISHED. 8.1 I HAVE CONSIDERED THE APPELLANT SUBMISSION ON LAW AND ON FACTS. I AGREE WITH THE PROPOSITION THAT SIM PLY BECAUSE THE ASSESSMENT STOOD CONFIRMED UP TO THE TRIBUNAL IT DOES NOT AUTOMATICALLY LEADS TO THE CONCLUSION THAT THE FACTS OF THE CASE DESERVE PENAL TY U/S 271 (1)(C) OF THE ACT.. THERE BEING NO CONCEALM ENT OR OMISSION OF ANY PARTICULARS THE LEVY OF PENALTY U/S 271(1)(C) IS QUESTIONABLE WHEN VARIOUS APPELLATE ITA 723 & CO 53(BANG)/2010 PAGE 8 OF 13 AUTHORITIES ON THE ISSUE UNDER QUESTION HOLD DIVE RGENT VIEW. FURTHER THE HIGH COURT IN CIT V. MATA PRASAD [2005] 278 ITR 354 (ALL) FOUND NO MERIT IN DEPARTMENTAL APPEAL QUESTIONING THE DELETION OF PEN ALTY ON THE GROUNDS THAT THERE WAS NO FRAUD OR WILLFUL CONCEALMENT ON THE PART OF THE ASSESSEE BASED ON APPRECIATION OF EVIDENCE AND MATERIAL PLACED ON REC ORD ALTHOUGH THERE WAS AN ADDITION OF RS. 38 000/- UPHE LD BY THE TRIBUNAL AS UNEXPLAINED INVESTMENT IN THE BUSINESS. 8.2 IT IS A WELL SETTLED POSITION IN LAW THAT WHERE THERE IS AMBIGUITY IN LAW THE QUESTION OF PENALTY SHOULD NOT ARISE. IN LAW WHERE TWO DIVERGENT VIEWS ARE POSSIBL E THE ASSESSEE CANNOT BE FAULTED FOR ADOPTING A VIEW FAVORABLE TO HIM IN FLING THE RETURN. RELIANCE IS P LACED ON THE DECISION OF THE MADRAS HIGH COURT IN THE CAS E OF CIT VS. SIVANANDA STEEL LTD [2002] 256 ITR 683 (MAD ). 8.5 I HAVE CONSIDERED THE SUBMISSIONS ON THE ABOVE ISSUE. THE APPELLANT HAD DISCLOSED FULLY THE CAPITA L GAIN TRANSACTION IN THE RETURN OF INCOME. NONE OF THE PARTICULARS FURNISHED BY THE APPELLANT HAVE BEEN PR OVED TO BE FALSE OR INACCURATE. THE APPELLANT HAS POINTE D THAT THE INCOME TAX OFFICER HAS FOUND NO NEW INFORMATION; THE ADDITIONS RESULTED MERELY BECAUSE OF DIFFERENCE IN OPINION IN THE INTERPRETATION OF LAW. THE APPELLANT RELIED ON SEVERAL JUDGMENTS WHICH INTERPR ETED PROVISIONS OF SECTION 54 AND SECTION 54F AS BEING AVAILABLE TO MORE THAN ONE HOUSE BASED ON THE DEFINITION OF A WHICH COULD MEAN MANY OR MORE THA N ONE AS HELD BY THE JURISDICTIONAL HIGH COURT IN CIT VS. D. ANANDA BASAPPA [2009] 309 ITR 329. ITA 723 & CO 53(BANG)/2010 PAGE 9 OF 13 THE REVENUE BEING AGGRIEVED HAS FILED THIS APPEAL AND THE ASSESSEE HAS FILED CROSS OBJECTIONS SUPPORTING THE ORDER OF THE CIT(A). 4. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED T HAT THE ASSESSEE HAS MADE A WRONG CLAIM FOR EXEMPTION U /S 54/54F AND THE SAME COULD BE DETECTED BY THE AO ONLY WHEN THE CASE WAS SELECTED FOR SCRUTINY AND DETAILS OF INVESTMENT S ON THE BASIS OF WHICH EXEMPTION WAS CLAIMED WERE EXAMINED. THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO RELIED ON THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. SREE VALLIAPPA TEXTILES (294 ITR 322). LEARNED AR OF THE ASSESSEE ON THE OTHER HAND REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORIT IES BELOW AND SUPPORTED THE FINDING OF THE CIT(A). 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MAT ERIAL ON RECORD. SO FAR AS THE MATERIAL PARTICULARS ARE CONCERNED ON THE QUESTION OF EXEMPTION IT WAS NOWHERE HELD BY T HE TRIBUNAL THAT THE ASSESSEE HAD CONCEALED ANY PARTICULARS OF INCOME. EVENTUALLY THE ORDER OF THE TRIBUNAL WHICH WAS DEC IDED IN FAVOUR OF THE DEPARTMENT WAS BASED ON INTERPRETATI ON OF THE PROVISIONS OF SECTION 54F AFTER CONSIDERING THE VAR IOUS JUDGMENTS AND IN PARTICULAR ITS OWN DECISION IN THE CASE OF D ANANDA BASAPPA (91 ITD 53). 5.1 THE ASSESSEE HAS FURNISHED ALL PARTICULARS ON FACTS AND IN LAW. NOWHERE HAS THE AO SAID THAT THE PARTI CULARS FURNISHED BY THE ASSESSEE ARE INACCURATE OR IN CORR ECT. HE LEVIED ITA 723 & CO 53(BANG)/2010 PAGE 10 OF 13 PENALTY ONLY BECAUSE JUDICIAL DECISIONS ARE AGAINST THE ASSESSEE. IT IS NOT THE CASE OF THE REVENUE THAT T HE CAPITAL GAIN WAS SUPPRESSED OR CONCEALED. THE PARTICULARS FURNIS HED WERE NOT FAULTED OR FOUND INADEQUATE AND INCORRECT. THE TAXABLE CAPITAL GAIN IS SHOWN IN THE RETURN OF INCOME AND N ON-TAXABLE CAPITAL GAIN CLAIMED ACCORDING TO THE ASSESSEE WHI CH IS EXPLAINED ELABORATELY ABOVE WAS DETAILED IN THE COM PUTATION SHEET THAT ACCOMPANIED THE RETURN OF INCOME. 5.2 EVEN ASSUMING THE ASSESSEES CLAIM IS WRONG; TH E TRIBUNAL ORDER WITH REGARD TO THE QUANTUM ASSESSMEN T WOULD SHOW THERE IS PLETHORA OF DECISIONS FOR AND AGAINST THE ASSESSEE AND THE ISSUE CAN BE CONSIDERED AS DEBATABLE. IN T HIS CONTEXT IT IS RELEVANT TO QUOTE THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT LTD [2010] 322 ITR 158 WHICH READS AS FOLLOWS: A MERE MAKING OF A CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING INACC URATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. S UCH A CLAIM MADE IN THE RETURN CANNOT BE AMOUNT TO FURNISHING INACCURATE PARTICULARS. THAT APART THE HONBLE SUPREME COURT IN THE CASE O F DILIP N. SHROFF VS. JOINT COMMISSIONER OF INCOME TAX AND ANO THER [2007] 291 ITR 519 HAS HELD AS UNDER: CLAUSE (C) OF SECTION 271(1) OF THE INCOME-TAX ACT 1961 CATEGORICALLY STATES THAT PENALTY WOULD BE LEVIABLE IF THE ASSESSEE CONCEALS PARTICULARS OF HI S INCOME OR FURNISHES INACCURATE PARTICULARS THEREOF. ITA 723 & CO 53(BANG)/2010 PAGE 11 OF 13 BUT BY REASON OF SUCH CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS ALONE THE ASSESSEE DOES NOT IPSO FACTO BECOME LIABLE FOR PENALTY. IMPOSITION OF PENALTY IS NOT AUTOMATIC. NOT ONLY IS THE LEVY OF PENALTY DISCRETIONARY IN NATURE BUT THE DISCRETION IS ALSO REQUIRED TO BE EXERCISED ON THE PART OF THE ASSESSING OFFICER KEEPING THE RELEVANT FACTORS IN MIND. SOME OF THOSE FACTORS APART FROM BEING INHERENT IN THE NATURE OF PENALTY PROCEEDINGS INHE RE ON THE FACE OF THE STATUTORY PROVISIONS. PENALTY PROCEEDINGS ARE NOT TO BE INITIATED MERELY TO HARAS S THE ASSESSEE. THE APPROACH OF THE ASSESSING OFFICER IN THIS BEHALF MUST BE FAIR AND OBJECTIVE. 5.3 TAKING INTO ACCOUNT THE FACTS AND CIRCUMSTANCE S OF CASE SINCE THE ASSESSEE HAD DISCLOSED FULLY THE CA PITAL GAINS TRANSACTION IN THE RETURN OF INCOME IT CANNOT BE S AID THAT THE ASSESSEE HAS CONCEALED INCOME. MAKING A CLAIM WHI CH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO F URNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. IN THE INSTANT CASE AS STATED EARLIER THE ASSESSEE H AS RELIED ON SEVERAL JUDGMENTS WHICH INTERPRETED PROVISIONS OF S ECTION 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 HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ANANDA BASAPPA (SUPRA). 5.4 THE DECISION RELIED ON BY THE LEARNED DEPARTMEN TAL REPRESENTATIVE IS NOT APPLICABLE TO THE FACTS OF TH E PRESENT CASE. IN THE CASE OF SREE VALLIAPPA TEXTILES (SUPRA) THE HONBLE ITA 723 & CO 53(BANG)/2010 PAGE 12 OF 13 JURISDICTIONAL HIGH COURT WAS CONSIDERING A CASE WH ERE THE ASSESSEE HAD MADE FALSE CLAIM OF DEPRECIATION EXTR A SHIFT ALLOWANCE AND INVESTMENT ALLOWANCE IN RESPECT OF A MACHINERY WHICH HAD NOT EVEN REACHED ITS PREMISES BEFORE THE END OF THE RELEVANT ACCOUNTING YEAR. IT WAS NOTICED BY THE HO NBLE HIGH COURT THAT THE MACHINERY WAS RECEIVED ONLY ON 13-7- 1984 MUCH AFTER THE CLOSE OF THE ACCOUNTING YEAR AND THE CLAI M OF DEPRECIATION EXTRA-SHIFT ALLOWANCE AND INVESTMENT ALLOWANCE IN RESPECT OF SAID MACHINERY IS FALSE AND NOT BONA FID E. BUT IN THE INSTANT CASE AS STATED EARLIER THE CLAIM OF DEDUC TION CENTRES AROUND INTERPRETATION OF A PROVISION BASED ON VARIO US JUDGMENTS OF THE HONBLE HIGH COURT AND THE ORDERS OF THE TRI BUNAL. 5.5 IN LIGHT OF THE ABOVE WE ARE OF THE VIEW THAT THE CIT(A) IS JUSTIFIED IN DELETING THE PENALTY AND WE SEE NO REASON TO INTERFERE WITH THE SAME. 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. 7. SINCE THE APPEAL OF THE REVENUE IS DISMISSED TH E CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED AS INF RUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER 2010 SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (GEORGE GEORGE K) JUDICIAL MEMBER PLACE : BANGALORE DATED: 29 TH OCTOBER 2010 EKS ITA 723 & CO 53(BANG)/2010 PAGE 13 OF 13 COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) CONCERNED 4. CIT 5. DR ITAT BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT BANGALORE