TMI Blog2018 (4) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... articulars thereof and it is only basing on the information furnished by the assessee in their financials but mistake committed by the assessee is detected. Mere disallowance of any expense does not amount to concealment of income or furnishing of inaccurate particulars thereof as is held by the Hon’ble Apex Court in the case of Reliance Petro Products Ltd. (2010 (3) TMI 80 - SUPREME COURT) - Decided in favour of assessee - I.T.A. No.6677/Del/2015 - - - Dated:- 18-4-2018 - SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI K. NARSIMHA CHARY, JUDICIAL MEMBER For The Appellant : Shri M.P. Rastogi P.N. Shastri For The Respondent : Shri Kaushlendra Tiwari, Sr. DR ORDER PER K. NARSIMHA CHARY, JM Aggrieved by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iny, it would have gone unnoticed, resulting in the evasion of tax, as such, it is a clear case of furnishing inaccurate particulars of income and by not making the proper computation, the assessee has also concealed the particulars of income. On this premise, leaned CIT(A) confirmed the penalty. Hence, being aggrieved by the same, assessee preferred this appeal stating that the findings of the learned CIT(A) are not in accordance with law and the learned CIT(A) failed to notice the bonafide explanation offered by the assessee that the claim of deduction is made inadvertently instead of making the same u/s 35D of the Act. 5. Argument of the learned counsel has four fold. Firstly, that there was no commencement of business but certain exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission on behalf of the Revenue that vide para 4 of the impugned order, learned CIT(A) gave a clear finding that the conduct of the assessee is making the wrong claim not only amounts to the furnishing of inaccurate particulars of claim but also concealment of the income in the light of the findings of the AO that claiming loss in the return of income, which is not allowable to the assessee is an act to avail tax on income in subsequent years, as such, it is a clear case of concealment of income and furnishing of inaccurate particulars thereof. This factual finding does not warrant any interference by the Tribunal at this stage. It is further submitted by the learned DR that when the business has started, this expense is not allowable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. 9. As stated above, the entire question in this matter reveals around whether a particular expense falls u/s 37 or section 35 of the Act. There is also no doubt as to the nature of the expense and it is not the case of the Revenue that this particular expense could be capitalized. Therefore, at best, this expenditure had to be amortized for a period of 5 years which the assessee did not do and the assessee explains that in view of AS 26, they have debited this particular expense to the profit and loss account. We fail to understand how this explanation is not a bonafide one. 10. Now coming to the third limb of argument of the assessee that notice which vests jurisdiction in the learned AO to proceed further with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty is to be imposed, it should be imposed only on the grounds on which he is called upon to answer. It is not open to the authority, at the time of imposing penalty to impose penalty on the grounds other than what assessee was called upon to meet. Otherwise though the initiation of penalty proceedings may be valid and legal, the final order imposing penalty would offend principles of natural justice and cannot be sustained. Thus once the proceedings are initiated on one ground, the penalty should also be imposed on the same ground. Where the basis of the initiation of penalty proceedings is not identical with the ground on which the penalty was imposed, the imposition of penalty is not valid. The validity of the order of penalty must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ER OF INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court. The appeal is accordingly dismissed. 14. The Special Leave Petition filed by the Revenue challenging the aforesaid judgement of the High Court was dismissed by the Hon ble Supreme Court holding : We do not find any merit in this petition. The special leave petition is, accordingly, dismissed. 15. In view of the above, factual and legal situation, we are unable to find that there is either any concealment of income or furnishing of inaccurate particular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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