TMI Blog2012 (8) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2008 2. The assessee has raised the following grounds of appeal:- The Learned Commissioner of Income (Appeals)-V, Baroda, has erred confirming penalty imposed under the provisions of Section 271(1)(c ) of the Act. The Learned Commissioner of Income (Appeals) ought to have confirmed penalty. 3. The assessee has also taken additional ground that reads as under:- The penalty is bad in law because the Assessing Officer s penalty order does not specifically state whether the same is imposed for concealing particulars of income or for furnishing inaccurate particulars of such income as held by Hon ble Gujrat High Court in New Sarothia Engineering Co. Vs. CIT (2006) 282 ITR 642. 4. Briefly stated facts as transpired f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated whether the penalty is imposed for furnishing the inaccurate particular of income or concealing particulars of income. He drew over attention to the penalty order wherein the AO has observed that it is clear that the assessee concealed income /furnished inaccurate particular of income. He placed reliance on the judgment of Hon ble Gujrat High Court rendered in the case of New Sorathia Engineering Co. Vs. Commissioner of Income Tax (2006) 282 ITR 642 (Guj) and also judgment of Hon ble Gujrat High Court in the case of CIT vs. Manu Engineering Works (1980) 122 ITR 306 (Guj), in support of his contention that it was incumbent upon the AO to give a clear cut finding whether the assessee has concealed the particular of income or furnished i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta Agency Ltd 19 ITR 191(SC) and Imperial Chemical Industries (India) (P) Ltd 74 ITR 17 (SC). In the present AO has made sustained enquiry and found that the party does not exist in the claimed place. The assessee has not been able to prove the existence of the party. This finding is very vital. Findings in the assessment proceedings constitute good evidence of concealment. (Somnath Mills 214 ITR (Guj). The assessee has filed particulars of an expenditure which cannot proved. To this extent the assessee has furnished inaccurate particulars within the meaning of Section 271(1)(c). In the case of Vidya Gouri Natwarlal 238 ITR 91 (GUJ) it has been held that mere disclosure does not save the assessee from penalty. If what is not allowable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Supra) and also decision of the Hon ble Co-ordinate Benches rendered in the case of Ganapati Bhai M. Mistry Furnishers Pvt. Ltd vs. ACIT in ITA No. 505/Ahd/2009 and in the case of Krishna Developers Vs. ITO in the ITA No. 4447,4448 and 4449/Ahd/2007, the appeal of the assessee is allowed and the assessing officer is directed to delete the penalty. Now we take the ITA No. 931/Ahd/2008 09. The facts are identical as were in the ITA NO. 930/Ah/2008 since there is no change into the facts and circumstances following the decision in ITA No. 930/Ah/2008 in the assessee s own case this appeal of the assessee is also allowed. The Assessing Officer is directed to delete the penalty. 10. In the result both the ITA No. 930/Ahd/2008 and I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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