TMI Blog2017 (8) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... is essential before levying any penalty u/s.271(l)(c). - Decided in favour of assessee. - ITA No. 1438/Mum/2016 - - - Dated:- 10-8-2017 - Shri P K Bansal, Vice President And Shri Pawan Singh, Judicial Member For The Appellant : Shri A Gopalakrishnan For The Respondent : Shri Rajat Mittal ORDER Per P K Bansal, Vice-President: This appeal has been filed by the assessee against the order of the CIT(A)-3, Thane, dated 02.11.2015 for A.Y. 2007-08, confirming the penalty imposed by the Assessing Officer u/s. 271(1)(c) amounting to ₹ 2,28,969/-. 2. The facts of the case in brief are that the Assessing Officer issued notice u/s. 148 on 06.11.2012. In reply thereto, the assessee submitted that the return for the aforesaid assessment has been filed along salary certificate from the employer and showed total income of ₹ 89,930/-. Subsequently, the assessment has been completed at an income of ₹ 9,14,930/- The Assessing Officer after issuing show cause notice levied penalty u/s. 271(1)(c) by observing as under: I am therefore, fully satisfied that the assesseea has concealed the particular of his income and furnished inaccurate part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in computing the total income of such person as a result thereof shall, for the purposes of cl. (c) of this sub-section be deemed to represent the income in respect of which particulars have been concealed. From the perusal of the aforesaid section, it is apparent that penalty u/s. 271(1)(c) is leviable if the Assessing Officer is satisfied in the course of any proceedings under this Act that any person has concealed the particulars of his income or furnished inaccurate particulars of the income. In this case, the Assessing Officer levied penalty on the assessee by observing as under: I am therefore, fully satisfied that the assessee has concealed the particular of his income and furnished inaccurate particular of income to ₹ 8,25,000/- and committed default. Such default had attracted the penalty u/s 271 (1) (c) of the IT Act. I therefore levy minimum penalty u/s 271 (1) (c) at ₹ 2,28,969/- (Rs. Two lakh twenty eight thousand nine hundred sixty nine only) which works out 100% of tax sought to be evaded as against maximum penalty leviable at ₹ 6,86,907/- (Rs Six lakh eighty six thousand nine hundred seven only) which works out at 300% of tax sought to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of mind and recording of at least a bare minimum opinion on the part of Assessing Officer that a case for initiation of penalty proceeding was/made as there was concealment of income or that incorrect particulars had been furnished by the assessee with the intention to avoid payment of taxes. This view is supported by various decisions of High Court therefore it is not necessary to discuss the other judgment on the issue. 7. The penalty u/s. 271(1)(c) can be levied for either of the charge. The penalty has been levied for both the charges by concluding that the assessee had furnished inaccurate particulars of her income and concealed her income on various issues. Section 271(1)(c)(iii) is explicitly clear that the penalty can be levied for concealment of particulars of income or furnishing of inaccurate particulars of income. It is the particulars of income which is the common subject matter of both the charges. The word 'conceal' as per Webster's Dictionary means to hide, withdraw, or remove from observation; cover or keep from sight; to keep secret; to avoid disclosing or divulging. That means non-disclosure of particulars of income. On the other hand, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is furnishing of inaccurate particulars of income since it provides a deeming fiction qua concealment of particulars of income only and consequently cannot be extended to a case where charge against the 'Assessee' is furnishing of inaccurate particulars of income. While, on the other hand, where charge against the 'Assessee1 is concealment of particulars of income, the Assessing Officer has to establish either that 'Assessee1 has not disclosed the particulars of income under the main or provisions or the case of 'Assessee' falls within the scope of the deeming fictions created under the Explanations. For example, the 'Assessee' might not disclose particular sales or dividend income or income from any source. Such instances would fall under the main provisions itself. In such cases, the burden is on the Assessing Officer to establish the existence of the charge on the basis of material on record. 10. Explanation 1 to section 271(1)(c) states that the amount added or disallowed in computing the total income of the assessees shall be deemed to be the income in respect of which particulars have been concealed. This deeming provision is not absolute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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