TMI Blog2019 (5) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... /Mum/2016 for A.Y.2009-10 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-25, Mumbai in appeal No.CIT(A)-25/IT/114/14-15 dated 15/09/2016 (ld. CIT(A) in short) in the matter of imposition of penalty u/s.271(1)(c) of the Income Tax Act, 1961. 2. The only issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in confirming the levy of penalty u/s.271(1)(c) of the Act in the sum of ₹ 16,54,500/- in the facts and circumstances of the case. 2.1. The assessee had raised a preliminary ground that no specific charge of offence committed by the assessee was mentioned by the ld. AO in the penalty show-cause notice by striking off the inapplicable words thereof and accordingly prayed for deletion of penalty on this technical ground. The assessee had also raised additional ground of appeal stating that the ld. CIT(A) erred in not appreciating the judicial position that if no proper satisfaction is recorded by the ld. AO in the assessment order u/s.143(3) of the Act dated 21/11/2011 for initiation of penalty u/s.271(1)(c) of the Act then the levy of penalty is bad in law. We find that admission of this additional ground of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled the particulars of income or furnished inaccurate particulars of income. The assessee made its submissions before the ld. AO on merits by stating that it had neither concealed its income nor furnished any inaccurate particulars of income. Based on that the assessee requested the ld. AO to drop the penalty proceedings. Later, there was yet another show-cause notice issued by the ld. AO vide show- cause notice dated 06/02/2014 wherein the assessee was show-caused as to why the penalty u/s. 271(1)(c) of the Act should not be levied as concealed income or furnishing of inaccurate particulars of income. The ld. AO in the penalty order passed u/s.271(1)(c) of the Act dated 11/03/2014 in page 1 para 3 of his order states as under:- 3. Brief facts in respect of concealment of income or furnishing of inaccurate particulars of income for which additions were made during the assessment proceedings are as under: (i)During the course of assessment proceedings, it was noticed that the assessee has shown long term capital gain of ₹ 38, 26,076 on transfer of right in the offices in the Building named as Platinum Techno Park, Vashi. The assessee, accordingly, asked to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id penalty notices and accordingly, prayed for deletion of the penalty on this technical ground. 2.7. In response there to, the ld. DR stated that this technical ground was not taken before the ld. CIT(A) and hence, the same cannot be admitted at this stage. 3. We have heard rival submissions. We find that the question of law as raised by the assessee before us (i.e., technical ground) can be raised for the first time if it does not involve any fresh investigation of facts. Reliance in this regard is placed on the decision of Hon ble Supreme Court in the case of NTPC Ltd., reported in 229 ITR 383. Accordingly, we dismiss the arguments of the ld. DR. It is very clear from the narration of the aforesaid facts with regard to various divergent charges specified by the ld. AO on the assessee in different forms in the notices, various places in assessment orders, various places in penalty order and finally levying the penalty on different reason. All these facts clearly go to prove that the Assesseing Officer has not specified as to the offence committed by the assessee i.e., whether the assessee had concealed its particulars of income or furnished inaccurate particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in CIT v/s. Manjunath Cotton and Ginning Factory 359 ITR 565 to delete the penalty: The Assessing Officer is empowered under the Act to initiate penalty proceedings once he is satisfied in the course of any proceedings that there is concealment of income or furnishing of inaccurate particulars of total income under clause (c). Concealment, furnishing inaccurate particulars of income are different. Thus, the Assessing Officer while issuing notice has to come to the conclusion that whether is it a case of concealment of income or is it as case of furnishing of inaccurate particulars. The apex court in the case of Ashok Pai reported in [2007] 292 ITR 11 (SC) at page 19 has held that concealment of income and furnishing inaccurate particulars of income carry different connotations. The Gujarat High Court in the case of Manu Engineering reported in 122 ITR 306 and the Delhi High Court in the case of Virgo Marketing P. Ltd., reported in 171 Taxmn 156, has held that levy of penalty has to be clear as to the limb for which it is levied and the position being unclear penalty is not sustainable. Therefore, when the Assessing Officer proposes to invoke the first limb being conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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