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TMI Blog2015 (1) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... rned CIT(A) failed to appreciate that the penalty had been levied in respect of the entire assessed income of Rs. 1,44,34,460/- even though admittedly appellant had voluntarily filed return of income declaring Rs. 1,32,72,830/- before issue of any notice of AO. 3. The learned CIT(A) failed to appreciate that Penatly is not leviable in respect of the following two additions also: (a) Depreciation of Rs. 5,61,630/- on flat claimed by appellant stockbroker who carried on business from residence also (b) Gift of Rs. 3 laks each received from father and mother in law for his two daughters. 4. It is requested that penalty levied on entire assessed income may please be deleted. 5. It is submitted that disallowance of claim reg. depreciation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. at Rs. 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 Rs. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Rs. 2,47,00,0001- f rom Saraswat Co-op. Bank to the I. T Department advising them to adjust the taxes due. At the time of filing the return, I had paid tax of Rs. 11,00,000/-. I was under the impression that the AG would have paid the balance out of the bank guarantee. After I received enquiry from your office, I contacted my AR Shri G.Y Wagh. He is on leave upto 27.01.2010. From his office, I learnt that a tax of Rs. 22,2 7,000/- had been paid and I obtained the original tax challan from the office (copy enclosed). As the AG is on leave, I will get the details regarding balance payment only after his return ". 12. It can be seen from the above, even after the appellate proceedings started, the appellant had not paid the taxes on the adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 appellant who was hospitalized with brain stroke died on 14/09/2009. Hence, it can be seen that the appel lant was prevented from appearing or f iling the details before the AO due to his Father's illness and death. In view of the above, penalty is confirmed at 100% on taxes sought to be evaded instead of 200% as levied by the AO. The appellant therefore gets relief of Rs. 48 lacs and the appeal is partly allowed". 11. The CIT(A), sustained the levy of penalty but reduced the quantum to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese facts culminate into the positive assumption that the assessee is callous, and not inclined to pay taxes voluntarily. This has been proved by the CIT(A), when he made the observation, "further, even after search, the 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". 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 271(1)(c). 18. We, therefore, sustain the initiation and levy of penalty under section 271(1)(c). 19. On the arguments of the AR before us and before the CIT(A), that penalty could only be levied on the difference of amounts assessed and income returned and also that no penalty could be levied on depreciation claimed on the usage of a residential property for his conduct of business and gifts received from father and mother in law, also cannot be accepted. 20. First, and the foremost, assessee filed his ROI after the search, therefore, the entire income declared in the ROI became concealment on the due date of return or being liberal on 31st March. 21. This is so because the assessee was legally bound to file his taxable return on o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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