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21. The ld. DR also placed reliance on the judgments of the Hon'ble Supreme Court in the case of Mak Data P. Ltd. vs. CIT (2013) 358 ITR 593 (SC); Union of India vs. Dharmendra Textile Processors and Ors. (2008) 306 ITR 277 (SC) and CIT vs. Atul Mohan Bindal (2009) 317 ITR 1 (SC) to support the sustenance of the instant penalty. In our considered opinion, such a reliance is improper in so far as the facts under consideration are concerned. In Mak Data P. Ltd. (supra), there was a survey conducted in case of that assessee's sister concern which divulged the assessee's involvement. The assessee surrendered a particular amount which was brought to tax. When the question came about imposition of penalty, the assessee contended that the surrender was made to avoid litigation and to buy peace. This contention failed to convince the Hon'ble Supreme Court because the voluntary surrender was made in view of detection by the AO. Similar is the position regarding another judgment of the Hon'ble High Court in CIT vs. Usha International Ltd. (2012) 254 CTR 509 (Del), relied by the ld. DR, in which the act of the assessee filing a revised return, withdrawing wrong claim of deduction, was not accepted as a genuine reason for evading penalty when the concealment already stood detected by the AO. We find that these two judgments, namely, Mak Data P. Ltd. (supra) and Usha International Ltd. (supra) are not relevant in the background of the facts as are instantly prevailing. It is not a case where the assessee either surrendered any income or filed a revised return offering the income. Nor did the assessee come forward to surrender the amount of Rs.3.31 crore and odd. On the contrary, it is a case in which the addition was made by the AO, which was not further appealed against. The reason for non-assailing of this addition of Rs.3.31 crore in quantum proceedings is understandable inasmuch as the assessee furnished its return declaring loss of Rs.40.65 crore and after making this addition, still there was a loss of Rs.37.33 crore. The ld. DR vehemently contended that penalty cannot be deleted even if the income returned and assessed is a loss. We are in full agreement with this proposition. However, it is not the case of the assessee that no penalty be levied due to returned and assessed loss. On the contrary, the assessee is trying to prove its bona fide in not assailing the addition in quantum proceedings on the ground that the addition was not challenged due to existence of loss even after addition and the assessee opting not to contest addition to avoid protracted litigation.

22. In Dharmendra Textile Processors and Ors. (supra), the Hon'ble Supreme Court laid down that mens rea is not an essential ingredient of section 271(1)(c) and there is no discretion with the authority competent to impose penalty to levy penalty below the prescribed limit. It is pertinent to mention that the Hon'ble Supreme Court in its later decision in Union of India vs. Rajasthan Spinning and Weaving Mills (2009) 224 CTR 1 (SC) has explained its earlier decision in Dharmendra Textile Processors and Ors (supra) by laying down that the earlier decision cannot be said to hold that penalty u/s 11AC of Central Excise Act would apply to every case. It has been mentioned that the decision in Dharmendra Textile Processors (supra) must be understood to mean that though the application of section 11AC would depend upon the existence or otherwise of the condition expressly stated in the section, but, once the section is applicable in a case, then, concerned authority would have no discretion in quantifying the amount of penalty. In so far as the reliance of the ld. DR on decision in the case of Atul Mohan Bindal (supra) is concerned, we find that in this case the Hon'ble Supreme Court has simply restored the matter to the Hon'ble High Court for taking a fresh decision in the light of the judgments in the case of Dharmendra Textile (supra) and Rajasthan Spinning and Weaving Mills (supra). It is further noticed that the Hon'ble Supreme Court in a later judgment in CIT vs. Reliance Petroproducts Pvt. Ltd. (2010) 322 ITR 158 (SC) has held that a mere making of a claim which is not sustainable in law, by itself will not attract penalty u/s 271(1)(c) when the assessee furnishes all the relevant particulars in the return which are not found to be inaccurate. This shows that each and every addition does not lead to imposition of penalty as has been canvassed on behalf of the Revenue.