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2025 (3) TMI 1484
Calculation of excise duty - non-inclusion of freight charges collected from the customers in the assessable value of the goods delivered at the buyer’s premises during the period April, 2007 to November, 2015 - extended period of limitation - HELD THAT:- The holistic reading of contract as a whole would indicate that sale in this case is on FOR basis and it is actually effected at the buyer’s premises. In other words, point of sale is at the buyer’s premises.
On the issue of the includability of freight, insurance, etc., there are catena of judgments passed by Hon’ble Supreme Court, High Courts and Tribunals. Essentially, one set of judgments has relied on the judgment of Hon’ble Supreme Court in the case of Ispat Industries [2015 (10) TMI 613 - SUPREME COURT], whereas, another set of judgments has relied on the judgment of Hon’ble Supreme Court in the case of Roofit Industries [2015 (4) TMI 857 - SUPREME COURT] and Emco Ltd [2015 (8) TMI 200 - SUPREME COURT]. While, as per Ispat Industries judgment, buyer’s premises can never be the place of removal but as per the judgment in Roofit Industries and Emco Ltd, the place of removal has to be determined on the basis of factual matrix including the point at which sale has actually taken place. Therefore, when the sale is clearly on FOR basis, following the judgments in the case of Roofit Industries and Emco Ltd, the place of removal will be at the buyer’s premises and obviously the cost of transportation, insurance, etc., if any, incurred by the assessee are required to be included in the assessable value. However, it is always important to decide as to what shall be the place of removal having regards to the factual matrix and relevant documents. Therefore, in case it is clearly established that the sale has not taken place at the factory and it has been effected only at the buyer’s premises then such costs would be includable in the assessable value.
It is found that both in the OIO as well as in the impugned order, based on the factual matrix, it has been brought out that the contract was on FOR basis, as thus the factual matrix was more clearly covered by the judgment in the case of Roofit Industries and Emco Ltd. - placing reliance on the judgments, the Commissioner (Appeals) has rightly held that in the given factual matrix, the judgments in the case of Roofit Industries and Emco Ltd are relevant and not that of Ispat Industries as clearly the price is not ex-works. There are no infirmity in the impugned order passed by the Commissioner (Appeals) insofar as merit is concerned.
Extended period of limitation - penalty - HELD THAT:- Adopting a method suitable or beneficial to appellant would be on account of their understanding of various judgments and is clearly an interpretational issue. It is also found that in the facts of the case, there is no other positive evidence on record suggesting that the appellants have deliberately chosen not to pay Excise Duty on freight charges and suppressed any information with intent to evade the payment of duty. Therefore, the invocation of extended period and imposition of penalty under section 11AC(1)(b) are not sustainable. Therefore, the impugned order to the extent of invoking extended period or imposition of penalty under section 11AC(1)(b) is not tenable and is accordingly, set aside.
Conclusion - The appellant is liable to pay excise duty inclusive of freight charges as the place of removal is the buyer's premises under the facts of this case, but the extended period of limitation and penalty under section 11AC(1)(b) are not justified and are set aside.
Appeal allowed partly.
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2025 (3) TMI 1483
Poem recited in the background of a video clip posted on social media - offence under Sections 196, 197(1), 299, 302, 57, and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS) - promoting enmity between groups, imputations prejudicial to national integration, and deliberate acts intended to outrage religious feelings - Mens rea - Free expression of thoughts and views by individuals or group of individuals - appellant is a Member of the Rajya Sabha - HELD THAT:- The poem does not refer to any religion, caste or language. It does not refer to persons belonging to any religion. By no stretch of imagination, does it promote enmity between different groups. We fail to understand how the statements therein are detrimental to national unity and how the statements will affect national unity. On its plain reading, the poem does not purport to affect anyone's religious feelings.
In the instant case, as we have seen, no prima facie case can be said to have been made out against the appellant qua the sections invoked. In such a case, registration of the FIR appears to be a very mechanical exercise and is a clear abuse of the process of law. In fact, registration of such FIR virtually borders on perversity. We are surprised that this very crucial aspect escaped the notice of the High Court. The High Court ought to have nipped the mischief at the threshold itself.
Mens rea will have to be read into Section 196 of the BNS. In this case, looking to the text of the words spoken and the context in which those were spoken, it is impossible to attribute any mens rea to the appellant.
We fail to understand how the High Court concluded that the message was posted in a manner that would certainly disturb social harmony. Thereafter, the High Court gave a reason that the investigation was at a nascent stage. There is no absolute rule that when the investigation is at a nascent stage, the High Court cannot exercise its jurisdiction to quash an offence by exercising its jurisdiction under Article 226 of the Constitution of India or under Section 482 of the CrPC equivalent to Section 528 of the BNSS. When the High Court, in the given case, finds that no offence was made out on the face of it, to prevent abuse of the process of law, it can always interfere even though the investigation is at the nascent stage. It all depends on the facts and circumstances of each case as well as the nature of the offence. There is no such blanket rule putting an embargo on the powers of the High Court to quash FIR only on the ground that the investigation was at a nascent stage. If such embargo is taken as an absolute rule, it will substantially curtail the powers of the High Court which have been laid down and recognised by this Court in the case of State of Haryana v. Bhajan Lal [1990 (11) TMI 386 - SUPREME COURT]
In a healthy democracy, the views, opinions or thoughts expressed by an individual or group of individuals must be countered by expressing another point of view. Even if a large number of persons dislike the views expressed by another, the right of the person to express the views must be respected and protected. Literature including poetry, dramas, films, stage shows, satire and art, make the life of human beings more meaningful. The Courts are duty-bound to uphold and enforce fundamental rights guaranteed under the Constitution of India. Sometimes, we, the Judges, may not like spoken or written words. But, still, it is our duty to uphold the fundamental right under Article 19 (1)(a). We Judges are also under an obligation to uphold the Constitution and respect its ideals. If the police or executive fail to honour and protect the fundamental rights guaranteed under Article 19 (1)(a) of the Constitution, it is the duty of the Courts to step in and protect the fundamental rights. There is no other institution which can uphold the fundamental rights of the citizens.
Thus, the impugned order deserves to be set aside. We, accordingly, quash and set aside the impugned order. We also quash and set aside FIR No. 11202008250014 of 2025, registered with City A-Division Police Station, Jamnagar, and further proceedings based thereon. The Appeal is accordingly allowed.
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2025 (3) TMI 1482
Validity of order passed by CIT(A) - main contention was that the AO passed the order u/s 147 r.w.s. 144B of the Act without granting adequate opportunity of being heard HELD THAT:- The undisputed fact is that the Ld. CIT(A) has dismissed the appeal without deciding the grounds on merits. Although it is stated in para 4 of the order that “the grounds of appeal are adjudicated”, there is no discussion, analysis, or decision on any of the specific grounds raised. The appellate order must reflect proper application of mind and deal with the contentions raised by the appellant. It is well settled that dismissal of appeal in limine without disposal on merits, especially when serious additions are involved, causes grave prejudice and violates the principles of natural justice.
In view of the above facts and in the interest of justice, we deem it fit to restore the matter back to the file of the CIT(A) for fresh adjudication on all grounds of appeal after granting adequate opportunity of being heard to the assessee. The assessee is also directed to cooperate in the proceedings and furnish necessary submissions and evidence as required.
Appeal of the assessee is allowed for statistical purposes.
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2025 (3) TMI 1481
Invalid Notice issued u/s 143(2) - HELD THAT:- Notice issued u/s 143(2) of the Act which is not in the prescribed format as provided under the Act is an invalid notice and accordingly, all the subsequent proceedings thereto would be invalid and void ab initio.
We are inclined to hold that notice issued u/s 143(2) of the Act is invalid notice and accordingly, the assessment framed consequentially to that is also invalid and is hereby quashed. Appeal of the assessee is allowed.
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2025 (3) TMI 1480
Validity of ex-parte order passed by CIT(Appeals)/NFAC - non-compliance by the assessee - HELD THAT:- Tribunal as the highest fact finding authority must be certain enough that the impugned order before it has been passed on merits and is a speaking order where the assessee has also complied during the process of litigation. In case, where the order of the CIT(Appeals) itself is ex-parte and some legal ground is raised and if the Tribunal decides such legal ground where in fact principles of natural justice is left unanswered due to the fact that the impugned order before the Tribunal is ex-parte and there was no compliance by the assessee in such scenario the Tribunal would also be usurping the power of the CIT(Appeals) which is also a statutory authority as per the Act.
This is due to the reason that as per framework of the Act, CIT(A) is the first appellate authority where an appeal by assessee it would be substantially decided through a speaking order by the Ld.CIT(Appeals). When this part is over and either party is aggrieved second appeal lies before the ITAT. Now if for every ex-parte order passed by the CIT(Appeals), of course due to non-compliance by the assessee, if the Tribunal adjudicates a legal ground, for instance validity of assessment or reassessment order and answers it in favour of the assessee then it would create an easy route for assessee getting redressal from Tribunal even without bothering to comply with hearing notices before the Ld. CIT(Appeals). This would dismantle the structure of the Act which is definitely not the intention of the legislature. Here in this situation, where the benefit of doubt is given to the assessee since he had not complied with the hearing notices before the Ld. CIT(Appeals) which resulted in passing of an ex-parte order by the Ld. CIT(Appeals), in such scenario, as per the scheme of the Act and following the principles of natural justice, the only course of action is to remand the matter back to the file of the Ld. CIT(Appeals) for adjudication on merits providing one final opportunity to the assessee.
We set aside the respective orders of the CIT(Appeals) for all the years and remand the same to their file for denovo adjudication on merits. We direct the assessee that this being the final opportunity, there must be compliance on merits before the first appellate authority. Grounds of appeals stands allowed for statistical purposes.
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2025 (3) TMI 1479
Condonation of delay of 1537 days in filing the Second Appeal under Section 51 of the Limitation Act, 1963 - sufficient cause for delay or not - HELD THAT:- In the present case, the filing of the Review Petition before the First Appellate Court was with a delay of two years and four months and the Second Appeal before the High Court was delayed by about a year from the date of the dismissal of the Review Petition i.e., 30.09.2019. Pausing for a moment, it is necessary to indicate that in the present case, the dispute over title of a land is not between private parties, but rather between the private party and the State. Moreover, when the land in question was taken possession of by the State and allotted for public purpose to the Youth Welfare Department and the Collectorate and has continued in the possession of the State, the claim of the State that it is government land cannot be summarily discarded.
The delay of 1537 days reckoned from 01.10.2015 i.e. when the First Appellate Court decreed the suit, includes two years and four months delay in filing a Review Petition (which was itself dismissed on the ground of delay by the First Appellate Court) and of about a year thereafter for filing the Second Appeal before the High Court, in the peculiar facts and circumstances of the case, which, at the cost of repetition relate to land claimed by the State as government land and in its possession, persuades to not interfere with the Impugned Order. Relevantly, initially the suit was dismissed by the Trial Court, which decision was reversed by the First Appellate Court.
The Second Appeal deserves to be heard, contested and decided on merits. However, a note of caution is sounded to the respondent to exhibit promptitude in like matters henceforth and in futuro, failing which the Court may not be as liberal.
Appeal dismissed.
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2025 (3) TMI 1478
Estimation of income - bogus purchases - AO estimated only 25% of the bogus purchases towards gross profit - Tribunal reduced the gross profit estimate to 10% - HELD THAT:- Right from the assessment stage till the impugned proceedings, the only issue involved was estimation of certain percentage of the purchases towards gross profit. The issue whether the entire purchases should have been added or not was not the subject matter right from inception but the only issue was estimation of certain percentage of profit.
It is also important to note that the assessing officer’s order was not subject matter of revisional proceedings under Section 263 of the Act thereby they too proceeded on a footing that the addition should be restricted only to extent of 25% and not 100%. Since, the issue involved relates to only estimation of profit, in our view, no substantial question of law can be said to have arisen therefore, the Appeal filed by the revenue is dismissed.
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2025 (3) TMI 1477
Estimation of income - bogus purchases - ITAT restricting the addition to 6% of the total bogus purchases against the addition made by the AO at the rate of 100% - HELD THAT:- As disallowance restricted to the extent of 0.50% is increased to 6% of the impugned purchases by ITAT. As in Surya Impex [2023 (1) TMI 835 - GUJARAT HIGH COURT] the Hon'ble Jurisdictional High Court affirms the decisions of this Tribunal on similar facts. Therefore, taking consistent view, the order of Id CIT(A) is modified and the assessing officer is directed to restrict the disallowance of purchases from there three parties be restricted to 6%. No substantial questions of law.
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2025 (3) TMI 1476
Bar of limitation u/s 153(3) - breach of statutory time limit available for passing fresh assessment orders - HELD THAT:- Identical controversy towards bar of limitation came in the case of Surendra Kumar Jain, Virendra Kumar Jain [2018 (10) TMI 806 - DELHI HIGH COURT]
The Hon’ble Delhi High took cognizance in the case of CIT vs Odeon Builders (P.) Ltd. [2017 (3) TMI 1266 - DELHI HIGH COURT and Sudhir Choudhrie [2005 (7) TMI 76 - DELHI HIGH COURT] and observed in unequivocal terms that once the order is listed for pronouncement in the Income Tax Appellate Tribunal, the department representative or the Commissioner of Income Tax (Judicial) should be taken to be aware of the order. From that point, it is a purely internal administrative arrangement as to how the Departmental representative or Commissioner of Income Tax (Judicial) obtains and further communicates the order to the officer who has to take decision on filing the appeal or any pertinent decision.
Thus limitation period u/s 153(3) would begin to run from the date of receipt of order by the Departmental representative for the purposes making assessment in terms of directions of Appellate Tribunal as per its order passed u/s 254(1) of the Act.
The receipt of the appellate order dated 28.02.2019 was demonstrated to be received by the office of the Ld.CIT DR on 28.03.2019. The limitation period for framing fresh assessment order thus would end on 31-122019. In view of the express judicial fiat, the impugned assessment orders framed on 23-04-2021 i.e after the expiry of limitation is thus rendered void and non est.
We find substantial merit in the plea of the assessee that all the assessment orders giving rise to the captioned appeals have been passed much beyond the statutory time limit available u/s 153(3) of the Act and thus a nullity in law at the threshold. Assessee appeal allowed.
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2025 (3) TMI 1475
Petition seeking to grant permission for management and possession of the keys of “Arulmighu Kamba Kamatchi Amman and Shri Kathavarayan Temple” for continuation of 'khrp' festival as well as for function to be performed during Full Moon and New Moon days - right of the management of the temple is still pending before the civil Court - HELD THAT:- As the matter is pending before the civil Court, the judgment and decree to be passed in the suit will decide as to who will be entitled to the keys. As of now, after the temple is closed post the festival celebrations, the keys shall be handed over to the Village Administrative Officer of Alangulam Village. Whenever a ceremony is sought to be performed in the temple, advance notice has to be given to the Poosari, Peyandi. The Village Administrative Officer will give the keys to the fourth respondent Peyandi for performance of the function. Incase, Peyandi refuses to perform his duties, then his relatives Periyasamy or Murugan may approach the Village Administrative Officer for the purpose of obtaining the keys. Prior to handing over the keys to Periyasamy or Murugan, the Village Administrative Officer shall enquire with Peyandi as to whether he is willing to perform the religious rites and functions. The Village Administrative Officer shall hand over the keys to anyone of the aforesaid two persons only if Peyandi refuses to perform his duties.
Thus, this Writ Petition is disposed of. Needless to add, the rights of the parties will be determined by the judgment and decree in the civil Court. No costs.
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2025 (3) TMI 1474
Disallowing the deduction claimed u/s 80 P(2) (a) (i) and 80(P) (2) (d) - Interest earned by a Co-operative Housing Society from other Co-operative society - HELD THAT:- The revenue has restricted the claim of deduction U/s 80P(2)(d) in pursuance of section 80P(4) of the Act and the cooperative bank is not considered as cooperative society.
Respectful reliance was placed on the order of Annasaheb Patil Mathadi Kamgar Sahakari Pathpedi Limited [2023 (5) TMI 372 - SC ORDER] and Kerala State Co-Operative Agricultural and Rural Development Bank Ltd. KSCARDB[2023 (9) TMI 761 - SUPREME COURT] where as categorically stated that cooperative bank is the cooperative society and not acted as Bank under Banking Regulation Act, 1949. We note the orders of the coordinate benches of ITAT who have taken same view in favour of the assessee. So, the interest earned from investment in cooperative bank is allowable deduction U/s 80P(2)(d) of the Act. The addition is quashed. Assessee appeal allowed.
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2025 (3) TMI 1473
Assessment framed u/s. 153A/143(3) - documents found from the possession of third party held to be incriminating documents found from the premises of the assessee or not? - HELD THAT:- In the instant case no incriminating material was found from the assessee during the search and seizure proceedings and the material in form of statement of third person was relied based on some other search operation. Hence if at all such statement is sought to be relied upon against the assessee, then logically the AOshould have proceeded on the assessee under section 153 C of the Act and not under section 153A of the Act. Hence the addition made in assessee hands under section 153 A of the Act is deleted. Decided in favour of assessee.
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2025 (3) TMI 1472
Challenge to assessment order - the proceedings did not contain a DIN number - HELD THAT:- The question of the effect of non-inclusion of DIN number on proceedings, under the G.S.T. Act, came to be considered by the Hon’ble Supreme Court in the case of Pradeep Goyal Vs. Union of India & Ors [2022 (8) TMI 216 - SUPREME COURT]. The Hon’ble Supreme Court, after noticing the provisions of the Act and the circular issued by the Central Board of Indirect Taxes and Customs (herein referred to as “C.B.I.C.”), had held that an order, which does not contain a DIN number would be non-est and invalid.
A Division Bench of this Court in the case of M/s. Cluster Enterprises Vs. The Deputy Assistant Commissioner (ST)-2, Kadapa [2024 (7) TMI 1512 - ANDHRA PRADESH HIGH COURT], on the basis of the circular, dated 23.12.2019, bearing No.128/47/2019-GST, issued by the C.B.I.C., had held that non-mention of a DIN number would mitigate against the validity of such proceedings.
In view of the aforesaid judgments and the circular issued by the C.B.I.C., the non-mention of a DIN number in the order, which was uploaded in the portal, requires the impugned order to be set aside.
Petition disposed off.
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2025 (3) TMI 1471
Refund of unutilised input credit - rejection primarily based on the ground that the six shipping bills in question were signed by the Inspector of Customs rather than by the Superintendent of Customs - HELD THAT:- The petitioner should be allowed to rely on the shipping bills that have now been certified by the relevant Superintendent of Customs.
The order of the appellate authority dated February 28, 2023, is set aside to the extent that it pertains to the three shipping bills numbered 607682 dated October 1, 2020, 607685 dated October 1, 2020, and 607467 dated October 22, 2020.
Application disposed off.
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2025 (3) TMI 1470
Rejection of appeal on the ground of limitation as the appeal should have been filed by 10.05.2023 whereas the appeal had been filed with a delay of 26 days which cannot be condoned - HELD THAT:- The Government of Andhra Pradesh, under G.O.Ms.No.551, dated 16.11.2023, had extended the period of limitation, for filing of an appeal, against any order passed before 31.03.2023, under Section 73 or 74 of the G.S.T Act, up to 31st January, 2024.
In view of G.O.Ms.No.551, dated 16.11.2023, this Writ Petition is allowed setting aside the order of rejection of appeal, dated 24.08.2023, and remanding the matter back to the appellate authority for consideration of the question of delay, in filing of the appeal, in terms of G.O.Ms.No.551, dated 16.11.2023, and to pass the orders thereon.
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2025 (3) TMI 1469
Conclusion of proceedings referable to Section 73 of Central Goods and Services Tax Act, 2017 - under-declaration of output tax and ineligible Input Tax Credit (ITC) - HELD THAT:- The authority has failed to assign or accord any reasoning or even allude to the response which had been submitted pursuant to the Show Cause Notice [SCN] which was issued. In view of the above, it is opined that the said order, being unreasoned, would not sustain.
The impugned order dated 20 August 2024 is quashed - petition allowed.
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2025 (3) TMI 1468
Cancellation of registration of petitioner - petitioner was unable to furnish a reply to the same within the time that had been stipulated - HELD THAT:- The ends of justice would warrant the petitioner being accorded an opportunity to furnish a response to the SCN and for proceedings being taken thereafter and in accordance with law.
Petition disposed off.
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2025 (3) TMI 1467
Validity of proceedings u/s 153C r.w.s. 143(3) - challenge to validity of the impugned assessments framed u/s 143(3) than that under section 153C or under section 148 - HELD THAT:- We find no reason to sustain the impugned section 153C assessment. We first of all deem it appropriate to quote section 153C(1) 1st proviso stipulating that “reference to the date of initiation of search under section 132 or making of requisition, shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the AO having jurisdiction ”
Hon’ble jurisdictional high court’s recent various landmark decisions, CIT-7 Vs. RRJ Securities Ltd. [2015 (11) TMI 19 - DELHI HIGH COURT], PCIT Vs. Ojjus Medicare (P) Ltd., [2024 (4) TMI 268 - DELHI HIGH COURT] and CIT Vs. Jasjit Singh [2023 (10) TMI 572 - SUPREME COURT] have already settled the issue that the reference in such an instance u/s 153C is the date when the Assessing Officer records his corresponding 153C satisfaction.
We, therefore, are of the considered view that the given fact that the learned lower authorities have framed section 243(3) assessments in these twin assessee’s cases based on the seized materials, without either taking recourse to section 153C or section 148 of the Act, as the case may be, the same are not sustainable in law. We accordingly quash the impugned twin assessments in very terms
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2025 (3) TMI 1466
Levy of penalty u/s 271C - short deduction of tax on LFC reimbursements to its employees - CIT(A) rejected the ground as this issue has ultimately been held against the assessee by Hon’ble Supreme Court [2022 (11) TMI 426 - SUPREME COURT] holding that the assessee was required to deduct tax at source on such reimbursements, also did not condone the delay of 961 days in the appeal - Aggrieved, the assessee is in further appeal before us - HELD THAT:- The assessee, following consistent stand as taken earlier, did not deduct tax at source on impugned reimbursements under a bona-fide belief that irrespective of en-route journeys, when the ultimate destination was in India, such reimbursements would be exempt u/s 10(5). The same is also supported by the fact that the Hon’ble High Court of Madras granted interim order favoring the assessee. Finally, the issue has been put to rest by Hon’ble Apex Court holding that the assessee would be required to deduct TDS on such reimbursements.
On these facts, it could very well be said that deduction of TDS on impugned reimbursements was not free from doubt and it was a debatable issue which has ultimately been settled by Hon’ble Apex Court. However, the assessee could not be visited with impugned penalty for short deduction of TDS.
The cited case law in the case of Pricewaterhouse Coopers P. Ltd [2012 (9) TMI 775 - SUPREME COURT] duly supports the case of the assessee. It was held by Hon’ble court that imposition of penalty was not warranted since the assessee had committed an inadvertent and bona fide error and not intended to conceal its income.
We delete the impugned penalty. CIT(A), in our opinion, considering the recurring nature of issue, should have condoned the delay considering the fact that the assessee was a public sector undertaking and it would not stand to gain by filing the first appeal with such a delay.
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2025 (3) TMI 1465
Penalty u/s 271(1)(c) - addition u/s 68 and 69 - HELD THAT:- The penalty provisions act independently and while invoking the penalty u/s 271(1)(c), both the limbs can be invoked jointly or separately with the additions made by the AO, but while invoking Section 271(1)(c) of the Act, the AO has to categorically mention in the assessment order as well as in the notice issued u/s 274 r.w.s. 271(1)(c) of the Act that why there is a component of concealment of income or why there is a component of furnishing of inaccurate particulars on the part of the assessee.
By not giving any reason or any finding of the assessee’s conduct, the invocation of penalty u/s 271(1)(c) fails and in the present case the AO has not given the details in the penalty order as to how the assessee has made concealment of income related to addition u/s 68 and to the addition u/s 69 as these components were already there in the bank account transactions maintained by the assessee and therefore it cannot be treated as concealment of income. Penalty imposed by the AO u/s 271(1)(c) of the Act is not justified - Decided in favour of assessee.
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