TMI Blog2017 (10) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Assessee : Sh. Ajay Kumar Matta, Adv. For The Department : Sh. S.S. Rana, CIT(DR) ORDER PER H.S. SIDHU, JM This appeal by the Assessee is directed against the Order of the Ld. Commissioner of Income Tax (Appeals-18), New Delhi dated 02.11.2015 pertaining to assessment year 2011-12. 2. The grounds of appeal raised in the assessee s appeal read as under:- 1. That the Ld. CIT(A) has grossly erred by confirming the penalty imposed by the Assessing Authority of ₹ 98,996/- under section 271(1)(c) of the I.T. Act, 1961. 2. That the Ld. CIT(A), New Delhi has further erred by not appraising himself about the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission dated 9.12.2013. Further to verify the claim of the assessee, the assessee was asked vide order sheet entry dated 9.12.2013 to produce narration of all the entries of overdraft account out of which loans have been taken and interest is being paid. In response to the same, the assessee gave the reply dated 18.12.2013. The reply of the assessee was considered by the AO but found partially acceptable. Thereafter, the AO observed that deduction of processing charges paid by the assessee was not allowable since the purpose of opening this OD account had not been made clear by the assessee. The number of withdrawals for personal / other purposes was more than the withdrawals for earning income from other sources. The other facts rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated the penalty proceedings u/s. 271(1) of the Act for concealment of income and for furnishing of inaccurate particulars within the meaning of explanation 1 to the sub-section (1) of section 271(1)(c) of the I.T. Act. Similarly, he also draw our attention towards the penalty order dated 27.8.2014 wherein the AO has observed that the act of the assessee was a deliberate act to evade the tax on amount of ₹ 3,20,377/- and an act committed for concealment of the particulars of his income and furnishing inaccurate particulars of his income and imposed the penalty of ₹ 98,996/- u/s. 271(1) of the Act on the amount added for which inaccurate particulars has been furnished. In view of the above, he stated that entire penalty pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h- a claim is. not found to be bona fide, Explanation 1 to section 271 (1 )(c) would come into play and assessee will be liable to penalty 3. CIT Vs Moser Baer India Ltd. (184 Taxman 8 (SC)/[2009] 315 ITR 460 (SC)/[2009] 222 CTR 213) (Copy Enclosed) where Hon'ble Supreme Court confirmed Penalty under section 271 (1 )(c) for wrong adjustment of Unabsorbed Depreciation. 4. CIT Vs Gold Coin Health Food (P.) Ltd (172 Taxman 386 (SC)/[2008] 304 ITR 308 (SC)/[2008] 218 CTR 359) (Copy Enclosed) where Hon'ble Delhi Supreme Court held that amendment made in Explanation 4 to section 271(1)(c)(iii) with effect from 1-4-2003 is clarificatory and, therefore, will have retrospective effect 5. CIT vs. Gates Foam Rubber Co [91 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the assessee was a deliberate act to evade the tax on amount of ₹ 3,20,377/- and an act committed for concealment of the particulars of his income and furnishing inaccurate particulars of his income and imposed the penalty of ₹ 98,996/- u/s. 271(1) of the Act on the amount added for which inaccurate particulars has been furnished. In view of the above, in our considered opinion, the entire penalty proceedings stand vitiated because the assessment order as well as penalty order are not sustainable in the eyes of law, in view of the following case laws. i) CIT Anr. Vs. M/s SSA s Emerald Meadows 2015 (11) TMI 1620 Karnataka High Court has held that Tribunal has correctly allowed the appeal filed by the assessee hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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