TMI Blog2013 (7) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Appeal Nos. 341 & 342 of 2013 - - - Dated:- 25-4-2013 - AKIL KURESHI AND MS. SONIA GOKANI, JJ. For the Appellant : K.M. Parikh. For the Respondent : None. ORDER:- PER : Akil Kureshi For the purpose of this judgment since facts are common, we may notice facts arising in Tax Appeal No.342 of 2013. 2. Revenue is in appeal against the judgment of the Income Tax Appellate Tribunal dated 31.8.2012 raising following question for our consideration:- Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the penalty for concealment of income by holding that in the penalty order the Assessing Officer has not given a clear cut finding as to whether the assessee has co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in hand also, the assessing officer, in the penalty order has not given a clear cut finding, as to whether the assessee has concealed particulars of income or furnished inaccurate particulars of income. In this case also, the assessing officer as well as the Ld CIT(A) has taken both the items in levying the penalty. Therefore, respectfully following the judgment of Honble Gujarat High Court rendered in the case of New Sorathia Engineering vs. CIT and CIT vs. Manu Engineering (supra) and also decision of the Honble Co-ordinate Benches rendered in the case of Ganapati Bhai M. Mistry Furnishers Pvt. Ltd. vs. ACIT in ITA No. 505/Ahd/2009 and in the case of Krishna Developers Vs. ITO in the ITA No.4447,4448 and 4449/Ahd/2007, the appeal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Tribunal only on this ground. We, however, notice that the Appellate Commissioner did give clear finding in this respect. It may perhaps be open to the Revenue to contend in such a situation that the penalty can still be sustained. We need not enter into such a question because we find that even otherwise in the order in original of the assessment or in the penalty order, being the original order of assessment, the Assessing Officer had come to the conclusion that for want of suppling sufficient material by the assessee, the claim of commission cannot be accepted. He had not come to any definite finding that the claim was not genuine or totally bogus. 9. In that view of the matter, in the facts of the present case, keeping thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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