TMI Blog2015 (8) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) under section 263. - Decided in favour of assessee. - I.T.A No.2881/Kol/2013 - - - Dated:- 30-4-2015 - Shri P. K. Bansal Shri Mahavir Singh, JJ. For the Appellant: Shri K. M. Roy, FCA For the Respondent: Shri Varinder Mehta, CIT, DR ORDER Per Shri Mahavir Singh, JM: This appeal by assessee is arising out of revision order passed by CIT-XVI, Kolkata vide M. No. CIT-XVI/263/13-14/3755-758 dated 17.12.2013. Assessment was framed by ACIT, Circle-48, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) for Assessment Year 2009-10 vide his order dated Nil. 2. The only issue in this appeal of assessee is against the revision order passed by CIT u/s. 263 of the act for revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. 271D was erroneous and prejudicial to the interest of revenue. After going through the above direction of CIT u/s. 263 of the Act to initiate penalty proceedings u/s. 271D of the Act for violation of provision of section 269SS of the Act, Ld. Counsel for the assessee on this proposition filed copy of judgment of Hon ble Calcutta High court in the case of CIT Vs. Linotype Machinery Ltd. (1991) 192 ITR 337 (Cal) wherein exactly on similar proposition Hon ble Calcutta High court has dealt the issue at para 6 7 of its order, which read as under: 6. At the hearing, Dr. Pal, learned counsel, has drawn our attention to the decision of the Delhi High Court in the case of Addl. CIT v. J. K. D'Costa [1982] 133 ITR 7. 7. There a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that penalty proceedings are being initiated, this is more a matter of convenience than of legal requirement. All that the law requires, so far as the penalty proceedings are concerned, is that they should be initiated in the course of proceedings for assessment. It is sufficient if there is some record somewhere, even apart from the assessment order itself, that the Income-tax Officer has recorded his satisfaction that the assessee is guilty of concealment or other default for which penalty action is called for. Indeed, in certain cases it is possible for the Income-tax Officer to issue a penalty notice or initiate penalty proceedings even long before the assessment is completed though the actual penalty order cannot be passed until the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome to a correct conclusion. In the assessment order, the Income-tax Officer did not record that the penalty proceedings had been initiated. He may initiate penalty proceedings by recording a direction to that effect in the order sheet, but no penalty can be imposed as a matter of course. The Income-tax Officer must be satisfied as to whether the facts warrant initiation of penalty proceedings and, if so, whether any penalty should be imposed. He has a discretion as to whether penalty should be imposed or not. He may levy penalty after being satisfied that the case attracts the provisions for penalty. For failure of the Income-tax Officer to record in the assessment order his satisfaction or the lack of it, the assessment order cannot be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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