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2018 (5) TMI 2125 - AT - Income TaxPenalty u/s 271(1)(c) - assessee was providing accommodation entries - HELD THAT:- As assessee was providing accommodation entries, therefore, the addition was sustained.The conditions under Section 271(1)(c) must exist before the penalty is imposed. There can be no dispute that everything would depend upon the return filed by the assessee because that is the only document, where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. We have already seen the meaning of the word "particulars" in the earlier part of this order. Reading the words in conjunction, they must mean the details supplied in the Return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in these cases, there is finding that the details filed by the assessee are incorrect and the assessee knowingly furnished inaccurate particulars of income and was very much aware that he was involved in Hawala entries. In these appeals, the penalty was levied/confirmed on the basis of involvement of the assessee as discussed in the earlier paras of this order. Thus, there is clear cut case of concealment of income/furnishing of inaccurate particular of such income, that being the case, we find no infirmity in imposing/confirming the penalty. Considering the provision of the Act and the foregoing discussion, order of the Tribunal on quantum addition, material facts available on record, it can be concluded that it was a conscious act of the assessee to hide something from the Department. As in the case of the present assessee, the quantum addition has been confirmed. However, in principle, the penalty levied by the Assessing Officer in respect of additions confirmed by the Tribunal should be sustained. However, by a later development, the co-ordinate Bench of the Tribunal in the case of Varun Industries Ltd. [2017 (4) TMI 1593 - ITAT MUMBAI] simply setaside the matter to the file of the Ld. Commissioner of Income Tax (Appeal), to decide the issue afresh after taking into account additions made in the hands of the brokers. The Ld. Assessing Officer is directed to ascertain the facts as to in whose hands the substantive/protective addition has to be made and then decide the issue of levy of penalty u/s 271(1)(c) of the Act on such additions. In the light of the aforesaid decision of the Tribunal, in the case of Varun Industries Ltd., we are forced to send these penalty appeals to the file of the ld. Assessing Officer to decide in accordance with law as the same will be dependent upon the outcome of the additions to be made in the hands of Varun industries Ltd. or the present assessee or any other related persons. Resultantly, these penalty appeals are also set-aside to the file of the ld. Assessing Officer. Appeal of assessee are allowed for statistical purposes only.
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