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2016 (8) TMI 816 - GUJARAT HIGH COURT

2016 (8) TMI 816 - GUJARAT HIGH COURT - TMI - Penalty u/s 271(1)(c) - Held that:- For levy of penalty under section 271(1)(c) of the Act, the AO has to arrive at a positive finding as to whether the assessee was guilty of concealment of income in respect of particular amount or the assessee was guilty of furnishing of inaccurate particulars of income in respect of an amount. In the instant case, it is observed from the order of the AO that he has not arrived at a final conclusion as to whether t .....

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- TAX APPEAL NO. 1979 of 2010 - Dated:- 11-8-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR SUDHIR M MEHTA, ADVOCATE FOR THE OPPONENT : MR BD KARIA with MR DARSHAN R PATEL for MR RK PATEL, ADVOCATE(s) ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1) By way of this Appeal, the Appellant - Department has challenged the order dated 19.03.2010 of the Income Tax Appellate Tribunal, Ahmedabad Bench 'D' in ITA No.2389/Ahd/2006 whereby the Tribunal reversed the fi .....

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1)(c) of the Act were established and was also referred by the Assessing Officer. 3) The facts of the case are as under :- The assessee filed the return of income on 30.12.2004 for the Assessment Year : 2004-2005 and claimed the status of a non-resident Indian. The return was processed u/s. 143(1) of the Income Tax Act, 1961 (hereinafter referred to in short as 'the Act') and the same was selected for scrutiny assessment and notice u/s. 143(2) of the act and notice u/s. 142(1) of the Act .....

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ated 24.08.2005, the assessee filed revised return on 31.08.2005, wherein he offered an amount of ₹ 69.97 Lakhs of foreign remittance as income from other sources stating that revised return of income is filed since the residential status of the assessee was wrongly considered as a non-resident instead of a resident. Therefore the above amount was added to the total income as per original return of income and an amount of ₹ 1,00,000/= on account of low household expenses was also add .....

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y the Tribunal allowed the appeal of the assessee and deleted the penalty. 4) Learned Counsel for the appellant - Department has taken us to the findings of the CIT (Appeals), Tribunal and has submitted that the Assessing Officer has recorded a categorical finding that the assessee was guilty of concealing particulars of income and the assessee also furnished inaccurate particulars of such income. It is further submitted that the CIT (Appeals) has extensively considered the matter and confirmed .....

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findings of the Tribunal which are reproduced hereunder :- In view of the aforesaid discussion, in our considered opinion, for levy of penalty under section 271(1)(c) of the Act, the AO has to arrive at a positive finding as to whether the assessee was guilty of concealment of income in respect of particular amount or the assessee was guilty of furnishing of inaccurate particulars of income in respect of an amount. In the instant case, it is observed from the order of the AO that he has not arr .....

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