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2016 (1) TMI 980 - ITAT PUNE

2016 (1) TMI 980 - ITAT PUNE - TMI - Penalty under section 271(1)(c) - Held that:- The assessment was completed by the Assessing Officer, who had not recorded any satisfaction for initiating the penalty for concealment under section 271(1)(c) of the Act, with regard to the additional income offered. Thereafter, in the order levying penalty also, the Assessing Officer had not levied any penalty. The CIT(A) while deciding the appeal against the order levying penalty under section 271(1)(c) of the .....

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CHOWLA, JM : This appeal filed by the assessee is against the order of CIT(A), Aurangabad dated 21.11.2013 relating to assessment year 2003-04 against penalty levied under section 271(1)(c) of the Act, 1961. 2. The assessee has raised the following grounds of appeal :- 1. The learned Commissioner of Income Tax (Appeals), Aurangabad has erred in facts and on law in initiating and levying fresh penalty u/s 271(1)(c) of the Income Tax Act, 1961 on differential amount arising from original return fi .....

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levied amounting to ₹ 39,23,895/- may be deleted. 3. Such other orders be passed as may be deemed fit and proper. 4. The Appellant craves leave to add, amend, alter vary and/or withdraw any or all the above grounds of appeal. 3. The issue arising in the present appeal is against the initiation and levy of fresh penalty under section 271(1)(c) of the Act by the CIT(A). 4. Briefly, in the facts of the present case, the assessee had furnished the return of income on 18.12.2003 declaring tota .....

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e assessee was taken up for scrutiny. The Assessing Officer vide para 4 notes that the assessee had credited a sum of ₹ 1.42 crores to its Profit & Loss Account being the declaration account. The assessee was asked to furnish the basis of declaration of additional income of ₹ 1.42 crores as against the declaration made during the survey of ₹ 1.75 crores. The assessee explained the said offer of ₹ 1.42 crores which is incorporated under para 4 at pages 2 to 3 of the as .....

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nder section 271(1)(c) of the Act were initiated against the assessee. Another issue noted by the Assessing Officer was agricultural income declared by the assessee and considering the facts and circumstances of the case, the agricultural income was restricted to the income shown in the original return of income and the difference of ₹ 1,51,640/- was considered as income from unexplained sources and added to the income of the assessee. The Assessing Officer also initiated penalty proceedin .....

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ncluding agricultural income and thereafter the assessment being completed under section 143(3) of the Act at ₹ 1.49 crores plus agricultural income of ₹ 1,75,348/-. The Assessing Officer further noted that the additions were made on account unexplained investment in Hotel Varsha at ₹ 23,01,567/- and agricultural income being unproved at ₹ 1,51,640/-. The Assessing Officer considering the contention of the assessee and the nature of additions held the assessee to have fur .....

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(c) of the Act on additions of ₹ 23,01,567/- on account of alleged unexplained investment in Hotel Varsha. The Revenue is not in appeal against the said deletion of penalty by the CIT(A). The CIT(A) further held that the penalty on addition of ₹ 1,51,640/- on account of excessive agricultural income claimed by the assessee was justified. The assessee is not in appeal against the said confirmation of penalty on the additions of ₹ 1,51,640/-. 6. The CIT(A) thereafter vide para 11 .....

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been declared in the original return of income but which was declared in the revised return filed in response to notice under section 148 of the Act. Therefore, in view of the provisions of clause (b) to section 251(1) of the Act, the CIT(A) proposed to enhance the penalty under section 271(1)(c) of the Act on the undisclosed income of ₹ 1,24,56,842/-. The plea of the assessee in this regard was that where the Assessing Officer had not initiated the penalty on the income offered to tax dur .....

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and submission of the appellant. On perusal of the same it has been noticed that it is undisputed fact that the appellant has filed original return of income for A.Y.2003 -04 on 18/12/2003 declaring income of ₹ 82,842/- and agricultural income of ₹ 1,75,348/-. It is also undisputed fact that during the course of survey proceedings u/s 133A conducted on 22/11/2007, it has been revealed that the appellant has earned substantial undisclosed income of ₹ 1,24,56,810/- [Rs.1,25,39,6 .....

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the audited profit and loss account filed with original return, the business profit has been shown at ₹ 1,22,029/- and the same has been shown as per profit & loss account filed after survey action at ₹ 1,25,79,646/- by crediting Declaration Account to profit & loss account to the extent of ₹ 1,42,00,000/-. As the return filed by the appellant was beyond the time limit prescribed u/s 139(5), the A.O. has issued notice u/s 148 on 26/02/2009 for assessing the undisclosed .....

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eturn filed by the appellant after survey action, in response to notice u/s 148, is not voluntary but on account of facts revealed due to survey action. The appellant has undisputedly concealed the income of ₹ 1,24,56,810/- which has been offered to tax by him in return of income filed on 05/11/2009 and which has been concealed in the original return filed on 18/12/2003. Therefore, in view of the provisions of section 271(1)(c) of the Act, the penalty u/s 271(1)(c) is leviable and hence pe .....

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Appeals) as section 251(1) allows enhancement of penalty levied on concealed income and does not allow levy of penalty on any other concealed income in respect of which the A.O. has not initiated penalty u/s 271(1)(c) of the Act. This contention of the AR of the appellant is incorrect in view of provisions of section 271(1)(c) r.w.s. 275(1)(c) of the Act. The relevant portion of the above mentioned sections is reproduced below - 271(1) If the Assessing Officer or the Commissioner (Appeals) or th .....

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penalty has been initiated, are completed or six months from the end of the month in which action for imposition of penalty is initiated, whichever period expires later. From the above provision of section 271(1)(c), it is evident that CIT(Appeals) in the course of any proceedings i.e. including appellate proceedings can initiate and levy penalty u/s 271(1)(c), if he is satisfied that any person has concealed the particulars of his income or furnished inaccurate particulars of such income. In th .....

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to section 271(1)(c) of the Act of ₹ 1,24,56,810/-. Therefore, I am satisfied that the appellant has concealed the income of ₹ 1,24,56,810/- and hence the penalty u/s 271(1)(c) is leviable in the case of the appellant in respect of the concealed income of ₹ 1,24,56,810/-. Further, the time limit prescribed in section 271(1)(c), reproduced above, is to be counted with reference to the initiation of the penalty. In the case under appeal, the penalty u/s 271(1)(c) in respect of c .....

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s) on the amount on which the A.O. has not initiated and levied penalty u/s 271(1)(c) from 100% to any percentage above 100% up to 300%. Notice u/s 251(1) issued on 31/10/2013 by the undersigned may be treated as enhancement as well as initiation of penalty by the undersigned as mentioned in detail in the notice dated 31/10/2013 giving opportunity of being heard. 9. The CIT(A) thus held the assessee to have concealed its income in the original return of income which was filed pursuant to survey .....

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ditional income of ₹ 1.75 crores and had filed revised return declaring total income of ₹ 1,25,39,650/-. The Assessing Officer completed the assessment on total income of ₹ 1,49,92,850/- i.e. after making two additions of ₹ 23,01,567/- and ₹ 1,51,640/-. In respect of the additional income offered by the assessee in its revised return of income, though on lower level the Assessing Officer did not initiate any penalty proceedings under section 271(1)(c) of the Act. Th .....

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ed Authorized Representative for the assessee fairly admitted that no appeal has been filed either by the Revenue or the assessee in respect of above said directions of the CIT(A). However, vide para 11, the CIT(A) show caused the assessee as to why penalty under section 271(1)(c) of the Act should not be levied on the additional income declared by the assessee pursuant to Survey upon the assessee. Our attention was drawn to the provisions of section 251(1) of the Act to point out that it talks .....

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s assessment or re-assessment passed by the Assessing Officer, 263 order passed by the Commissioner and / or enhancement order in quantum proceedings passed by the CIT(A). The learned Authorized Representative for the assessee pointed out that where the Assessing Officer did not initiate or did not levy any penalty for concealment, then even where the powers of the CIT(A) are co-terminus with the powers of the Assessing Officer, he has no power to levy penalty. In this regard, reliance was place .....

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which penalty was initiated and then, levy of penalty for concealment. 12. The learned Departmental Representative for the Revenue on the other hand, pointed out that where the CIT(A) was satisfied on account of revised return filed by the assessee, he had the power to initiate penalty proceedings under section 271(1)(c) of the Act. Our attention was drawn to the Explanation below section 251(1) of the Act. The learned Departmental Representative for the Revenue relied on the order of CIT(A). Af .....

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the Assessing Officer to initiate and levy penalty on any issue. In the said letter, it has been mentioned by the learned Departmental Representative for the Revenue that he had an occasion to be present in B Bench of the Tribunal, wherein the same learned Authorized Representative for the assessee as in the present case was arguing one case of Vivek Chowdhary, wherein the issue involved was about the powers of CIT(A) to issue and levy the penalty. In the case of Vivek Chowdhary, the CIT(A) rat .....

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n view thereof, a prayer was made before us to consider the said decision of the Hon ble Karnataka High Court. 13. We have heard the rival contentions and perused the record. The issue in the present appeal is in relation to the levy of penalty for concealment under section 271(1)(c) of the Act. In the facts of the present case before us, the assessee had originally filed return of income declaring total income of ₹ 82,842/-. Thereafter, Survey under section 133A of the Act was carried out .....

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Assessing Officer accepted the said additional income declared by the assessee. Further, the Assessing Officer made two additions i.e. one on account of unexplained expenditure being undisclosed sources of ₹ 23,01,567/- and another addition on account of the agricultural income declared by the assessee, where the said income was restricted by the Assessing Officer and difference of ₹ 1,51,640/- was added as income from undisclosed sources. The Assessing Officer initiated the penalty .....

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ion 271(1)(c) of the Act, the CIT(A) deleted the penalty levied on addition of ₹ 23,01,567/- and upheld the levy of penalty on addition of ₹ 1,51,640/-, against which the respective Department or the assessee are not in appeal. 14. Another aspect noted by the CIT(A) was the undisclosed income of ₹ 1.24 crores. The CIT(A) noted that the Assessing Officer had failed to initiate and levy penalty under section 271(1)(c) of the Act on the said undisclosed income of ₹ 1.24 cror .....

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son has concealed particulars of his income or furnished inaccurate particulars of income, the CIT(A) is empowered to initiate and levy penalty under section 271(1)(c) of the Act. Consequently, the CIT(A) held that the assessee had concealed income of ₹ 1.24 crores and hence, liable for levy of penalty under section 271(1)(c) of the Act on the said concealed income of ₹ 1.24 crores and levied penalty of ₹ 39,23,895/-. 15. The issue arising before us is whether where the Assessi .....

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he total income was declared at ₹ 1.24 crores along with agricultural income of ₹ 3,26,988/-. The Assessing Officer noted that in the said revised return of income, the assessee had declared the additional income at ₹ 1.42 crores as against the original declaration of ₹ 1.75 crores. However, the declaration made by the assessee at ₹ 1.42 crores was accepted by the Assessing Officer. The perusal of the assessment order reflects that no penalty proceedings were initia .....

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ntum proceedings pending before the CIT(A). But the CIT(A) while deciding the appeal against the order passed levying penalty under section 271(1)(c) of the Act, was of the view that the Assessing Officer had failed to initiate the penalty proceedings for concealment under section 271(1)(c) of the Act on the said additional income of ₹ 1.24 crores and the CIT(A) held the assessee to be liable for the said levy of penalty for concealment. 16. The provisions of section 271(1)(c) of the Act a .....

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gh Court held that section 271 is a specific provision providing for imposition of penalties, and is a complete code in itself, regulating the procedure for the imposition of penalties prescribed. The proceedings have, therefore, to be conducted in accordance therewith, subject always to the rules of natural justice. The provisions for the assessment and levy of tax will not apply as such for the imposition of penalty. In such a situation, i.e., when there is a specific provision, proceedings sh .....

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re attracted. In case the conditions are not fulfilled, there is no question of exercising power under the said provision to impose penalty. The Hon ble High Court thereafter, deliberated upon the conditions which must exist before initiating the proceedings under section 271 of the Act. The Hon ble High Court was of the view that levy of penalty is not a matter of course, it has been found that the assessee concealed any income. Where there is no concealment, or no material for concealment, no .....

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ome offered after search would not lead to levy of penalty automatically. Thereafter, the Hon ble High Court considered the various facets of the terms used in the section 271(1)(c) of the Act and also the Explanation thereunder and reference was made to the words of Explanation (1), which makes it clear that where in respect of any facts material to the computation of total income of any person under this Act, such persons fails to offer an explanation or offers an explanation which is found to .....

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atisfy the requirement of invoking jurisdiction in law in respect of initiation of penalty proceedings. Satisfaction should be in the assessment order. Referring to the provisions of section 271(1B) of the Act, the Hon ble High Court observed that the Legislature by inserting the said provisions had created a legal fiction and when the assessment order contains direction for initiation of penalty proceedings, such order shall be deemed to constitute satisfaction of the Assessing Officer for init .....

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e Hon ble High Court further held as under:- This provision is attracted once in any such assessment orders, a direction for initiation of penalty proceedings under clause (c) of sub-section (1) is made. Thereby, it means even if the order does not contain a specific finding that the assessee has concealed income or he is deemed to have concealed income because of the existence of facts which are set out in Explanation 1, if a mere direction to initiate penalty proceedings under clause (c) of su .....

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re amendment. They held that provisions will fall foul of article 14 of the Constitution if the same is not read in the manner it has read and in fact has read down the provisions to hold it constitutional. Therefore, according to the Delhi High Court, in post amendment and pre amendment there is not much difference and the satisfaction is required to be arrived in the course of assessment proceedings and should be discernible in the assessment order. Therefore, this provision makes it abundantl .....

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should contain a direction for initiation of penalty proceedings and in this regard, it was observed by the Hon ble High Court as under:- Direction 50. A reading of section clearly indicates that the assessment order should contain a direction for initiation of penalty proceedings. The meaning of the word "direction" is of importance. Merely saying that penalty proceedings are being initiated will not satisfy the requirement. The direction to initiate proceedings should be clear and no .....

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ent order contains a direction. The use of the phrases like (a) penalty proceedings are being initiated separately, and (b) penalty proceedings under section 271(1)(c) are initiated separately, do not comply with the meaning of the word "direction" as contemplated even in the amended provisions of law. The direction should be clear and without any ambiguity. The word "direction" has been interpreted by the decision of the apex court in the case of Rajinder Nath v. CIT reporte .....

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rection. 20. The Hon ble High Court further observed that under the scheme of section 271(1)(c) of the Act, the persons who are authorized to compute income as well as initiate the proceedings are the Assessing Officer, CIT(A) or Commissioner in the course of revisionary jurisdiction. It was clarified by the Hon ble High Court that Explanation (1) applies to all these three officers, whereas the deeming provision of sub-section 1(B) refers only to the Assessing Officer. Where the order of assess .....

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on (1B) was confined only to the Assessing Officer. The Hon ble High Court observed as under:- When deeming provision not applicable 52. Sub-section (1B) only deals with satisfaction of the Assessing Officer. However, under the scheme of section 271, the persons who are authorised to compute income as well as initiate the proceedings or the Assessing Officer or the Commissioner of Income-tax (Appeals) or the Commissioner in the course of revisional jurisdiction, Explanation 1 applies to all thes .....

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ould state what is mentioned in Explanation 1. It is only if those facts are set out in the order, then the deeming provision in Explanation 1 applies and the concealment of income could be presumed and then they are entitled to initiate penalty proceedings under section 271. If the said order do not disclose the facts set out in Explanation 1, they are not entitled to the benefit of deeming provision contained in the provision of subsection (1B). The said deeming provision is confined only to t .....

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is satisfied that the assessee has concealed income. Once such a finding is recorded that is sufficient to initiate penalty proceedings. Assuming such a categorical finding is not recorded in the order, at least, he has to record facts as contemplated in Explanation 1. If these facts are discernible from the assessment order, the deeming clause in Explanation 1 is attracted and the income is deemed to have been concealed. That gives the jurisdiction to the officer passing the order to initiate .....

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gorically laid down by the Hon ble High Court that the person initiating penalty proceedings should be satisfied about the existence of the said conditions in the assessment order passed by them. The onus was on the officer passing the order to categorically state that he was satisfied that the assessee has concealed income and once such a finding is recorded, then it is sufficient to initiate penalty proceedings. In other words, if the officer passing the assessment order does not direct initia .....

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e offered by the assessee. However, penalty proceedings were initiated and levied by the CIT(A) during the course of hearing the appeal against the order levying penalty under section 271(1)(c) of the Act. The assessment proceedings and the penalty proceedings are two separate and distinct proceedings. The initiation of the penalty proceedings has to be during the course of assessment, which admittedly, is a separate and distinct proceeding. Thereafter, the requirement of the Act is to issue sho .....

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concealment of income or furnishing of inaccurate particulars of income by the person who is being assessed by the said officer. Undoubtedly, the jurisd iction to assess a person lies with the Assessing Officer and also with the CIT(A) or the Commissioner in his revision jurisdiction, but the exercise of power to record satisfaction that the person has concealed its income or furnished inaccurate particulars of income and thereafter, initiate the penalty proceedings against such person, has to b .....

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ssment proceedings, which admittedly is a separate stage. After such satisfaction has been recorded, then the assessee is to be show caused as to why penalty for concealment should not be levied and this power is enshrined in section 271(1) of the Act, under which, before imposing any penalty, show cause notice is again to be given to the assessee within time frame provided under the Act in section 275 of the Act. The Hon ble High Court in CIT & Anr. Vs. Manjunath Cotton and Ginning Factory .....

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the penalty proceedings have to be initiated by the person who is satisfied about the concealment of income or furnishing of inaccurate particulars of income in the course of any proceedings under this Act. In a given case if the Assessing Officer has not recorded any satisfaction or has not issued any direction to initiate penalty proceedings, in appeal or in revision, the authority is satisfied regarding concealment and furnishing of inaccurate particulars, then it is that authority which is s .....

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penalty has also to be done by the Assessing Officer but this can be done within the time prescribed in section 275. 55. In the case of initiation of penalty proceedings during the course of appeal or revision proceedings, the authority who has to be satisfied is the authority in whose proceedings the issue is examined and not any other authority. The levy of penalty has also to be done by the same officer as the language used in the later part of section 271 is that : "He may direct that s .....

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Hon ble High Court very clearly laid down that the levy of penalty can be two stages i.e. during the course of assessment by the Assessing Officer or during the course of appeal or revision proceedings, where if the authority is satisfied regarding concealment and furnishing of inaccurate particulars, it is then that authority, which is satisfied, has to initiate penalty proceedings and thereafter pass orders in respect of the penalty to be imposed. The Hon ble High Court also elaborated that t .....

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edings, the authority who has to be satisfied is the authority in whose proceedings, the issue is examined and not any other authority. Further, levy of penalty has also to be done by the same authority, but by different proceedings. The Hon ble High Court very clearly held the authority in whose proceedings, there is satisfaction of concealment or furnishing inaccurate particulars of income alone, can levy the penalty and not any other authority. Applying the above said principles laid down by .....

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in the hands of the said assessee justifies initiation of penalty proceedings. The exercise of initiation of penalty proceedings is at the stage of assessment by the Assessing Officer or at the stage of an appeal against the quantum appeal, by the CIT(A) or in the revision proceedings. Thereafter, the person who has initiated the penalty proceedings is only the competent person to levy the penalty proceedings and not any other authority. 23. Visiting the facts of the present case, the assessment .....

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under section 271(1)(c) of the Act was of the view that the penalty for concealment is also leviable on the additional income offered by the assessee in its return of income pursuant to Survey action. We find no merit in the exercise of jurisdiction by the CIT(A) in the present case, where the assessment proceedings were completed by the Assessing Officer and thereafter, no appeal was filed before the CIT(A) against the quantum addition and there were no proceedings before the CIT(A) vis-à .....

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the addition / assessment in the hands of the assessee. In case the said person is CIT(A), then he is competent to initiate the penalty proceedings and also competent to levy the penalty by passing a separate order, but the CIT(A) is not competent to initiate and levy the penalty for concealment under section 271(1)(c) of the Act by the same order while deciding the appeal against the order levying penalty for concealment passed by the Assessing Officer under section 271(1)(c) of the Act. The CI .....

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the said proposition proposed by the learned Departmental Representative for the Revenue. Admittedly, where the CIT(A) has completed the assessment during the course of appellate proceedings and he is satisfied that there is a case of concealment and furnishing of inaccurate particulars of income, then he can initiate the penalty proceedings. Thereafter, the CIT(A) is only competent to issue show cause notice to the assessee before levying the penalty under section 271(1)(c) of the Act and ther .....

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against the order levying penalty under section 271(1)(c) of the Act was only abrest of the penalty order passed by the Assessing Officer and while deciding the said appeal, he had no jurisdiction to initiate and levy penalty under section 271(1)(c) of the Act on an issue against which, the assessment was made by the Assessing Officer. 25. Before the Hon ble High Court, there were series of appeals and after laying down the proposition with regard to the initiation and levying of penalty under s .....

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