TMI Blog2015 (10) TMI 2592X X X X Extracts X X X X X X X X Extracts X X X X ..... e levied u/s 271(1)(c ) of the Act in respect of issues involving substantial question of law as no allegation could be raised on the assessee with regard to concealment of income or furnishing of inaccurate particulars of income and the issue involved is highly debatable in nature - Decided in favour of assessee - I.T.A No. 2012/Kol/2006 - - - Dated:- 8-10-2015 - Shri M. Balaganesh, Accountant Member, and Shri S.S. Viswanethra Ravi, Judicial Member For the Appellant: Shri Sunil Surana, ACA, DISA, ld.AR For the Respondent : Shri Pinaki Mukherjee, JCIT, ld.DR ORDER SHRI M.BALAGANESH, AM This appeal of the assessee arises out of the order of the Learned CITA in Appeal No. 91/CIT(A)XVI/IT/29(2)/05-06 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Learned AO as below:- Disclosure on account of stock 50,000 Investment towards pawn broking business 4,98,924 Unrecorded investment towards Acquisition of loose stones 2,20,000 Unrecorded investment towards Acquisition of Silver Utensils 1,76,900 9,45,824 Penalty proceedings u/s 271(1)(c ) of the Act were initiated by the Learned AO in respect of the addition made in the sum of ₹ 9,45,824/-. This Tribunal had deleted the penalty levied for a sum of ₹ 8 lacs while disposing off this appeal in ITA No. 2012/Kol/2006 dated 19.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Learned CITA towards the same are as below:- Interest earned as ascertainable from seized Documents ₹ 70,000 CITA deleted ₹ 25,000 Concealed investment towards pawn broking Rs1,00,000 Sustained by CITA Hence ultimately, the additions were confirmed by Learned CITA to the tune of ₹ 1,45,000/-. These additions were upheld by this tribunal in quantum proceedings. Against this tribunal order on quantum, the assesee challenged further appeal before the Calcutta High Court and the appeal was admitted involving substantial question of law. The Learned AR argued that admittedly no penalty was ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty proceedings u/s 271(1)(c ) of the Act in respect of the said additions of ₹ 1,45,000/- but proceeded to levy penalty which in our opinion is not in accordance with law. In this regard, the reliance of the Learned AR on the case law of Madhyapradesh High Court in the case of Addl CIT vs Nihalchand Badrilal reported in (1982) 135 ITR 519 (MP) is well placed. In the said case, their Lordships have held as below:- It is well settled that when the matter is referred to the IAC by the ITO under section 274(1), the IAC has no jurisdiction to impose a penalty on a ground different from that on which the ITO had started the penalty proceedings, nor can he take into account any further concealment discovered by himself. In the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns sustained by this tribunal in quantum proceedings in the sum of ₹ 1,45,000/- has been admitted by the Hon ble Calcutta High Court as involving substantial question of law. Hence we hold that no penalty could be levied u/s 271(1)(c ) of the Act in respect of issues involving substantial question of law as no allegation could be raised on the assessee with regard to concealment of income or furnishing of inaccurate particulars of income and the issue involved is highly debatable in nature. Reliance in this regard is placed on the decision of Mumbai Tribunal in the case of Advaita Estate Development P Ltd vs ITO reported in (2013) 027 ITR (Trib) 0112, wherein it was held as below:- Where the substantial question of law was admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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