TMI Blog2015 (1) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... essee did not file his return of income even though he had taxable income. This is a clear case of concealment of income - the detection of the assessee having taxable income came to light only when the assessee was searched u/s 132 - this cannot be taken into the realm of assessee furnishing the details and disallowed by the revenue authorities - rather, it would fall into the category of concealment, with an intention to conceal the particulars of income and evade tax, which would squarely fall within the precinct of section 271(1)(c) – thus, the levy of penalty u/s 271(1)(c) is sustained – Decided against assessee. - ITA No. 84/Mum/2011 - - - Dated:- 26-12-2014 - Shri Rajendra And Shri Vivek Varma,JJ. For the Appellant : Shri Lakhminarayanan For the Respondent : Shri Sachidanand Dubey ORDER Per Vivek Varma, JM: The appeal is filed by the assessee against the order of CIT(A)-36, Mumbai, dated 18.11.2010, wherein, the following grounds have been raised: On the facts and circumstances of the case and in law: 1. The learned CIT(A) erred in not deleting in full the penalty of ₹ 96,05, 076/- levied by the AO under section 271(1)(c) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. at ₹ 96,05,076/-. 6. Aggrieved the assessee approached the CIT(A) before whom, the assessee submitted that the case could not be represented before the AO, because, his father was seriously ill and who later on expired. Taking this fact into consideration, the CIT(A) reduced the penalty to the amount of tax computed on assessed income of ₹ 1,44,72,590/-. 7. Since there was no compliance form the assessee before the AO, and placing certain papers before the CIT(A), for the first time, the CIT(A) called for remand report from the AO. 8. The AO in his remand report gave the full details of personal non companies as well as tax non-compliance. The AO, therefore, submitted that penalty had been rightly levied, as the assessee had not been filing his returns of income. 9. As per the principals of natural justice, the CIT(A) forwarded the remand report to the assessee, who submitted his reply on 15.11.2010. 10. The CIT(A), after considering the reply of the assessee on the remand report, observed, 11. A search was conducted in the case of the appellant on 17.10.2006. He had never filed any return of income though he was having substantial income for yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had not filed the return of income for 17 months and taxes on the same were also not paid till the commencement of the appellate proceedings. It is also clear from the fact that the appellant did not contest the addition in appeal as he had nothing to say on the matter. All the above acts point to the fact that the appellant wanted to and evaded payment of tax. 14. The appellant had also argued that the penalty should be levied only on the taxes sought to be evaded on the differences of returned income and assessed income and also that the immunity under section. 271(1)(c) to Explanation 5 should be available have considered the argument. Recently, Hon'ble ITAT, 'A' Bench, Mumbai in the case of M Ajit B Zota vs ACIT, Central Circle-35, Mumbai 400020 in ITA. No.7325/Mum/2008 dated 16/07/20'0 conf irmed the penalty on the above issue. Therefore respectfully following the order of the Hon'ble ITAT, the penalty is confirmed on this account also. 15. The AO has levied the penal ty of 200% as the appel lant neither f iled any submission nor appeared before him to clarify the matter. The penalty has been levied on 25/09/2009 while the Father of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o clear from the fact that the appellant did not contest the addition in appeal as he had nothing to say on the matter. All the above acts point to the fact that the appellant wanted to and evaded payment of tax . This observation, as made by the CIT(A) in the impugned order, could not be controverted by the AR before us. 17. On the other hand, the assessee before the CIT(A) and the AR before us, placed heavy reliance on the decision of Hon ble Supreme Court of India, in the case of CIT vs Reliance Petroproducts Ltd., reported in 322 ITR 158. We cannot accept the arguments of the AR that the case of CIT vs Reliance Petroproducts Ltd. (supra), fully covers the case of the assessee. This is because of the fact that in the case of Reliance Petroproducts Ltd. (supra), the Hon ble Supreme Court found that their found certain claims which were not allowable, but since complete details had been furnished, the Hon ble Supreme Court concluded that the facts had been shown but the assessee had made a wrong claim. This was an important factor that the assessee had disclosed all material facts and had not tried to conceal the particulars of income. The Hon ble Apex Court held, in such a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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