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2017 (2) TMI 321 - ITAT DELHI

2017 (2) TMI 321 - ITAT DELHI - TMI - Penalty u/s 271(1)(c) - assessee made certain claims by way of business expenditure in the return of income but was not able to substantiate these claims - Held that:- There is no conclusive proof that the assessee concealed income or furnished inaccurate particulars of income. The AO has not brought enough incriminating material for concealment and there is no material for establishing the concealment independently in the given facts and circumstances of th .....

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oncealment of income. On the facts and circumstances of this case the assessee’s conduct cannot be said to be contumacious so as to warrant levy of penalty. - Decided in favour of assessee - I.T.A. No. 3486/Del/2016 - Dated:- 2-2-2017 - Shri H. S. Sidhu, Judicial Member Assessee by : Dr. Rakesh Kumar Gupta, Adv. & Sh. Somil Aggarwal, Adv. Revenue by : Sh. F. R. Meena, Sr. Dr. ORDER This appeal is filed by assessee against the order dated 29.12.2015 passed by the Ld. CIT(A)-2, New Delhi relat .....

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bad in law and against the facts and circumstances of the case. 3. That the assessee craves the leave to add, alter or amend the grounds of appeal at any stage and all the grounds are without prejudice to each other. 3. At the threshold, I note that Registry has raised the objection of shortage of Tribunal fee by ₹ 6007/- at the time of filing the appeal. However, in this connection, Ld. Counsel of the assessee has stated that in view of the Hon ble High Court of Patna decision dated 6.5. .....

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ported in (2009) 310 ITR 0195, in the case of Dr. Ajith Kumar Pandey vs. Income Tax Appellate Tribunal, wherein the Hon ble High Court has held that a person aggrieved by an order imposing penalty, if approaches the Tribunal by preferring an appeal, imposition of penalty, having no nexus with the total income of the assessee, it would not be discernible what is the total income of assessee and accordingly, such an appeal will be covered by Cl. (d) of s. 253(6) and fee payable before the Tribunal .....

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was completed on 14.12.2009 at an income of ₹ 6,50,720/-. Aggrieved with this order, the assessee preferred an appeal before the Ld. CIT(A). The Ld. CIT(A) vide his order dated 22.06.2010 dismissed the appeal of the assessee. 5.1 Further, the assessee filed an appeal against the order of Ld. CIT(A) before the ITAT. The ITAT vide its order passed in ITA No. 4246/De1l2010 dated 31.12.2010 restored back the case to the file of the AO for fresh adjudication. The reassessment was completed u/s .....

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above addition was treated as concealed income and inaccurate particulars of income of the assessee. Therefore penalty proceedings u/s 271(1) (c) of the I.T. Act, 1961 were initiated by issue of notice u/s 274 read with section 271 of the I.T. Act, 1961 dated 15.12.2011. Another notice was issued to the assessee on 22.11.2013 fixing the hearing on 20.12.2013 providing an opportunity to show cause why penalty u/s 271(1)(c) should not be levied. No reply was received by the AO. After introduction .....

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y of ₹ 1,78,500/- @100% of the tax sought to be evaded vide his order dated 31.3.21014 passed u/s. 271(1)(c) of the I.T. Act, 1961. 6. Aggrieved with the penalty order, assessee appealed before the Ld. CIT(A), who vide impugned order dated 29/12/2015 has upheld the penalty and accordingly, dismissed the appeal of the Assessee. 7. Against the above order of the Ld. CIT(A) dated 29.12.2015, assessee is in appeal before the Tribunal. 8. During the hearing, Ld. Counsel of the assessee has file .....

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assed by Ld. CIT(A); copy of ITAT order dated 31.12.2010 in ITA No. 4246/Del/2010 for AY 2002-03; copy of assessee s reply dated 16.8.2011 filed before AO together with Annexures; copy of assessee s reply dated 14.9.2011 filed before the AO; copy of assessee s reply dated 17.10.2011 filed before the AO together annexures; copy of assessee s reply dated 1.12.2011 filed before the AO; copy of assessment order dated 15.12.2011 passed by the AO u/s. 143(3) of the Act read with section 254 of the I.T .....

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d has nowhere furnished any inaccurate particulars. It was the further contention that nowhere in the assessment order, it has been recorded that the assessee furnished inaccurate particulars of income. Therefore, he stated that no penalty can be levied in this case as it cannot be said that there was any attempt by the assessee to conceal particulars of income. In this behalf, he filed a copy of the decision rendered by the Hon ble Supreme Court of India in the case of CIT vs. Reliance Petropro .....

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documentary evidences filed by the assessee in the shape of paper book and the case law cited by him. From the records, it reveals that the AO levied penalty of ₹ 1,78,500/- passed u/s. 271(1)(c) of the I.T. Act, 1961 vide order dated 31.3.2014. The AO observed that company made certain claims by way of business expenditure in the return of income but was not able to substantiate these claims. However, the assessee s counsel contention was that the assessee did not claim any expenditure in .....

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ected by the AO as false or incorrect facts nor AO had clinching any further evidence of concealment of facts. I further find that the assessee has admitted the addition only to avoid hazards of litigation and to buy the peace but the same do not constitute admission for the purpose of levying penalty. 10.1 I also find that section 271(1)(c) postulates imposition of penalty for furnishing of inaccurate particulars and concealment of income. On the facts and circumstances of this case the assesse .....

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ontinues to be a good law because what was overruled in the Dharmender Textile case was only that part in Dilip Sheroff case where it was held that mensrea was a essential requirement of penalty u/s 271(1)(c). The Hon ble Apex Court also observed that if the contention of the revenue is accepted then in case of every return where the claim is not accepted by the Assessing Officer for any reason, the assessee will invite the penalty u/s 271(1)(c). This is clearly not the intendment of legislature .....

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