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2017 (10) TMI 1418 - AT - Income TaxLevy of penalty u/s. 271(1)(c) or u/s. 271AAA - Whether AO has wrongly recorded satisfaction for levying penalty u/s. 271(1)(c) on the charge of furnishing inaccurate particulars of income - case of ‘concealment of income’ or ‘furnishing inaccurate particulars of income’ - Held that:- In the present case, penalty u/s. 271(1) r.w.s 5A has been levied in respect of additional income offered by assessee representing investment made in the flat. AO observed that investment made for purchasing flats has not been reflected in the books of assessee. The relevant extract of the findings of Assessing Officer from order levying penalty have seen extracted above in para 9. Thus, it is a case of concealment of income. In the order levying penalty, AO has remarked that it is a case of deemed concealment of income. After having coming to conclusion that it is a case of deemed concealment, AO thereafter held that penalty u/s. 271(1)(c) has been levied on the assessee for furnishing inaccurate particulars of income. After examining the order passed u/s. 271(1) (c), we are of the view that the Assessing Officer was not clear in his understanding whether it is a case of ‘concealment of income’ or ‘furnishing inaccurate particulars of income’. Ambiguity and confusion in the mind of Assessing Officer is writ large. In assessment year 2009-10, it is an undisputed fact that due date for filing return of income u/s. 139(1) had not expired. The assessee had not filed any return of income u/s. 139(1) of the Act. The only return filed by assessee was in response to the notice u/s. 153A. The period relevant to assessment year 2009-10 is ‘specified previous year’ as defined under section 271AAA. The contention of the assessee is that in assessment year 2009-10 penalty u/s. 271(1)(c) is not leviable, if at all, penalty was be levied, it could be u/s. 271AAA of the Act. In the instant case, the date of search is 11.09.2009. The due date for filing return of income u/s. 139(1) in the present case is 30.09.2009. Undisputedly, the assessee had not filed any return of income for the relevant assessment year 2009-10. Thus, all the three conditions are satisfied. Thus, we are of considered view that previous year 2008-09 relevant to assessment year 2009-10 falls within Clause (i) of the definition of ‘specified previous year’ as given in Explanation (b) to Section 271AAA. AO has erred in invoking the provisions of section 271(1)(c) of the Act in assessment year 2009-10. - Decided in favour of assessee.
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