TMI Blog2019 (12) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the decision in the case of CIT vs Samson Perinchery [ 2017 (1) TMI 1292 - BOMBAY HIGH COURT ] . We noted that at the time of hearing the learned Sr. DR has not doubted the facts of the case but pointed out that there is due application of mind by the AO which can be demonstrated from the discussion in the assessment order and the order of CIT(A), wherein if discussed the reasons for the disallowance of depreciation, he has recorded the satisfaction that the penalty proceedings are initiated under section 271(1)(c) for concealing of particulars of income as well as for furnishing of inaccurate particulars of income. We are of the view, that the DR has admitted to demonstrate the application of mind by the AO but it is no differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty is being initiated. The facts and circumstances in all the three years are exactly identical and the grounds raised are also identical except the quantum of penalty. The grounds in AY 2012-13 in ITA No. 4735/Mum/2018 read as under: - 1. On the facts and circumstances of the Appellant', case and in Law, the notice issued under section 274 read with section 271(1)(c) by the l.d. Assessing Officer in a mechanical manner without recording any satisfaction is bad in law and the consequential penalty order passed under section 271(l)(c) of the Act is bad in law and not sustainable in the eyes of law. 2. On the facts and circumstances of the appellant's case and in law the Ld. Commissioner of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,48,250 TOTAL 23,42,472 4. The assessee company offered undisclosed income of ₹ 2,59,680/- in the Financial Year 2011-12, relevant to AY 201213 and paid the taxes accordingly. The AO initiated the penalty proceedings vide Para 5.4 of the assessment order dated 28.10.2016 passed under section 153C read with section 143(3) of the Act as under: - 5.4 In light of above discussion and the findings of the search proceedings, I am satisfied that it is the fit case for initiation of penalty under section 271(1)(c) of the I.T. Act for furnishing inaccurate particulars of income and the concealment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and hence penalty is vitiated. I am unable to accept this argument. The assessment order, the penalty show cause notice clearly specify the charge on both the limbs. The penalty order also shows that penalty is levied for both furnishing inaccurate particulars of income as well as concealment of particulars of income. On query, whether there was any prejudice created by not specifying the charge and whether any query was raised before the assessing officer in this regard, no specific reply was filed. It is not necessary that only one of the charge can apply to the exclusion of the other in all cases. In facts of this case scrap sales was reflected in books but partially. Thus there is both furnishing of inaccurate particulars of income a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the disallowance of depreciation, he has recorded the satisfaction that the penalty proceedings are initiated under section 271(1)(c) of the Act for concealing of particulars of income as well as for furnishing of inaccurate particulars of income. We are of the view, that the DR has admitted to demonstrate the application of mind by the AO but it is no difference in as much as that the AO in assessment order as initiated the penalty proceedings for both the charges i.e. for furnishing of inaccurate particulars of income as well as concealment of particulars of income. We find that this issue is squarely covered by the decision of Hon ble Bombay High Court in the case of Samson Perinchery (supra) wherein it is held as under: - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
