TMI Blog2015 (9) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 2-9-2015 - SHRI JOGINDER SINGH AND B.R.BASKARAN, JJ. For The Appellant : Shri Neelkanth Khandelwal For The Rspondent : Shri Jitendra Kumar ORDER PER B.R. BASKARAN (AM) Both the appeals filed by the assessee are directed against the common order dated 29.8.2013 passed by Ld CIT(A)-38, Mumbai and they relate to the assessment years 2007-08 and 2008-09. 2. The assessee is aggrieved by the decision of ld.CIT(A) in confirming the penalty levied in both the years u/s 271(1)(c) of the Act. 3. The facts relating to the issue are stated in brief. The Revenue carried out the search and seizure operation under section 132(1) of the Act in the hands of the assessee on 22.01.2009. During the course of search procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission payment is made to a Kolkatta based company for the work obtained in Chennai and Bangalore and the enquiry made through an Inspector located Kolkatta revealed that the office of the above said company generally remains closed. In reply, the assessee submitted that he had given the cheque in the name of the concerns as sought by the concerned person, who brought the work. The assessee further submitted that he does not normally verify the bonafides of the company, since huge contract work was brought by them. He further submitted that he had not received cash against the cheque so given and accordingly contended that the commission payments were genuine. The assessee was asked to produce the persons who brought the work and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut certain facts about genuineness of payments. I have made payments to these companies as per request of persons who has got me the work. It is my inability as of now to produce these parties to support my contention that the payments are for genuine business purpose. However, I am once again saying that I have not received cash from anyone, else you would have found unaccounted investments, cash or expenses during the course of search. My investments and expenses are properly acounted for. When I am paying so much tax honestly for so many-years, I have no intention to book these expenses to save or evade taxes. These are technical matters forwhich I have no answer at present and now they are adversely affecting my mental state and profess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng:- (a) Copy of statement taken of the Mr. Sandeep Sitlani of M/s Nishchal corporate services Pvt Ltd. (b) Copy of the Report of Inspector of Addl. DDI, Kolkatta (c) Any other material relied upon by the AO. 9. Thus, we notice that the case of the assessee is that the impugned commission payments were genuine. Further they have been paid along with service tax by way of cheque and the assessee had also deducted tax at source. The assessee has also specified the projects for which the commission payments have been made. It is not the case of the assessing officer that the assessee did not get the projects for which the impugned commission payments were made. It is also not the case of the assessing officer that such kind of comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee as presumed by the assessing officer, since the assessing officer has not afforded an opportunity to the assessee to contradict the documents that were relied upon by the AO. Accordingly, we are of the view that assessment of commission income does not result in concealment of particulars of income, in the facts and circumstances of the case. 11. If we examine the explanations furnished by the assessee in terms of Explanation 1 to sec. 271 of the Act, we notice that the assessee has offered an explanation and the same has not been found to be false. It is pertinent to note that the revenue was having only suspicion about the genuineness of the payments at the time of search proceedings on the basis of enquiries conducted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is liable to be quashed, if the AO has not correctly specified the charge. In this regard, he placed reliance on the decision dated 11.10.2013 passed by the co-ordinate bench of Tribunal in the case of Shri Samson Perinchery in ITA No.4625 to 4630/M/2013, wherein the Tribunal followed the decision rendered by the Hon ble Karnataka High Court in the case of CIT Vs. Manjunatha Cotton Ginning Factory (2013)(35 Taxmann.com 250)(kar dated 13.12.2012) and held as under:- 13. From the above, it is clear that the penalty should be clear as to the limb for which it is levied and the position being unclear here the penalty is not sustainable. Therefore, considering the same, we are of the opinion that the ground raised by the assessee shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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