TMI Blog2015 (9) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... true income. It is further held that satisfaction of the Assessing Officer need not to be recorded in a particular manner. Same view also expressed by the Hon’ble Punjab & Haryana High Court in the case of CIT Vs. Shyamraj Singh (2014 (5) TMI 776 - PUNJAB & HARYANA HIGH COURT ). The satisfaction for initiation of penalty is coupled with the findings of the assessment order would show that satisfaction existed in the course of assessment itself and deemed to constitute satisfaction. The Hon'ble Supreme Court in the case of Union of India Vs. Dharmendra Testile Processors [2008 (9) TMI 52 - SUPREME COURT] has held that willful concealment is not an essential ingredient for attracting civil liability. The assessee intentionally claimed the cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been accepted by the Department. 2. The sole ground of the assessee s appeal is against partly confirming the penalty and revenue s ground is against partly deletion of penalty U/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred as the Act). The ld Assessing Officer observed that the return for A.Y. 2004-05 was filed by the assessee company on 29/10/2004 declaring total income of ₹ 125.91 crores. The case was scrutinized U/s 143(3) of the Act and income was assessed at ₹ 165.65 crores as against the returned income of ₹ 125.91 crores. While purpose of MAT U/s 115JB of the Act, the income was assessed at ₹ 189.18 crores. The ld Assessing Officer initiated penalty proceedings U/s 271(1)(c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer and observed as under:- * AR s request for keeping the penalty proceedings in abeyance till the order of the ITAT cannot be acceded to in view of the presently effective provisions of section 275 of the IT Act, 1961. * AR s long discussion on the merits of the additions is not relevant here as, after due consideration, the relevant additions have been confirmed by ld. CIT(A) who has also made strong observations while deciding the issues against the assessee. * AR s objection regarding non-recording of satisfaction note by A.O. is not true. It is to be appreciated that, after each of the relevant additions, A.O. has specifically mentioned about the initiation of penalty proceedings [Reference: Paras 2.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue expenditure. Thus, the assessee tried to evade payment of taxes on the same. The assessee stated that the Assessing Officer had initiated penalty proceedings without recording satisfaction, however, after the insertion of subsection (1B) to Section 271 there is no need to record satisfaction before issue of notice U/s 271(1)(c) merely issue of direction to issue penalty notice is sufficient. He further considered the case laws relied upon by the assessee. However, in all these cases, it was decided that levy of penalty depend on facts of each case and merely disallowance of expenditure claimed cannot lead to the belief that assessee has furnished inaccurate particulars. In the appellant s case, the assessee had claimed expenses, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically capital in nature. He relied on the following case laws:- (i) CIT Vs. Reliance Petroproducts (P) Ltd. (2010) 322 ITR 158 (SC). (ii) S. A. Builders Ltd. Vs. CIT(A) (2007) 288 ITR 1 (SC). (iii) India Cement Ltd. Vs. CIT 60 ITR 52 (SC). Therefore, he prayed to delete the penalty confirmed by the ld. CIT(A). 5. At the outset, the ld DR has vehemently supported the order of the Assessing Officer and argued that full penalty of ₹ 88,08,614/- may please be confirmed. 6. We have heard the rival contentions of both the parties and perused the material available on the record. The assessee claimed revenue expenditure which were claimed as capital expenditure in the books of account under the head new project expen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and concealed the income. The case law relied by the assessee are on mens rea or intention to conceal the particulars of income is to be proved by the revenue. The Hon'ble Supreme Court has held in the case of Mak Data P Ltd. Vs. CIT (2013) 358 ITR 593 (SC) that explanation-1 to Section 271(1)(c) of the Act raises a presumption of concealment when a difference is noticed by the Assessing Officer between the reported and assessed income. The burden is then on the assessee to show otherwise by cogent and reliable evidence. When the initial onus placed by the explanation has been discharged by him, the onus shifted to the department to show that the amount in question constituted income and not otherwise. In case before us, the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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