TMI Blog2017 (11) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... g the same, we delete the penalty and allow the appeal of the assessee. - ITA No. 3198/Mum/2016 - - - Dated:- 10-11-2017 - Sri Mahavir Singh, JM And Sri G. Manjunatha, AM Assessee by : Rahul Hakani, AR Revenue by : Ram Tiwari, DR ORDER Per Mahavir Singh, JM This appeal by the Assessee are arising out of the order of Commissioner of Income Tax (Appeals)-37, Mumbai, [in short CIT(A)] in appeal No. CIT(A)-37/IT-142/ACIT-25(3)/2013-14 dated 18-03-2016. The Assessment was framed by the Assistant Commissioner of Income Tax, Circle-21(2), Mumbai (in short ACIT) for the assessment year 2010-11 vide order dated 31-12-2012 under section 143(3) of the Income Tax Act, 1961(hereinafter the Act ). The penalty was levied under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 whereby penalty for issuing notice under section 271(1)(c) of the Act was initiated by observing that penalty proceedings under section 271(1)(c) read with section 274 of the I.T. Act, 1961 are initiated for furnishing inaccurate particulars of income and concealment of income. He further, took us through the order at para 5 which reads as under: - 5. I am therefore satisfied that the assessee has committed a default within the meaning of section 271(1)(c) of the I.T. Act by filing inaccurate particulars of income and concealment of income by taking accommodation entries from hawala traders and enhanced its purchases to the tune of ₹ 17,52,735/-. Minimum and Maximum penalty under section 271(1)(c) leviable at 100% and 300% c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of CIT v. Samson Perinchery [2017] 392 ITR 4 (Bom.), wherein it is held as under : - 3 The impugned order of the Tribunal deleted the penalty imposed upon the Respondent Assessee. This by holding that the initiation of penalty under Section 271 (1)(c) of the Act by Assessing Officer was for furnishing inaccurate particulars of income while the order imposing penalty is for concealment of income. The impugned order holds that the concealment of income and furnishing inaccurate particulars of income carry different connotations. Therefore, the Assessing Officer should be clear as to which of the two limbs under which penalty is imposable, has been contravened or indicate that both have been contravened while initiating penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g P. Ltd., reported in 171 Taxmn 156, has held that levy of penalty has to be clear as to the limb for which it is levied and the position being unclear penalty is not sustainable. Therefore, when the Assessing Officer proposes to invoke the first limb being concealment, then the notice has to be appropriately marked. Similar is the case for furnishing inaccurate particulars of income. The standard proforma without striking of the relevant clauses will lead to an inference as to nonapplication of mind. 5. The grievance of the Revenue before us is that there is no difference between furnishing of inaccurate particulars of income and concealment of income. Thus, distinction drawn by the impugned order is between Tweedledum and Tweedlede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nataka High Court on this very issue in the case of CIT vs. Manjunath Cotton Ginning Factory [2013] 359 ITR 565 (Karnataka), wherein similar view is taken. 8. We have heard the rival contentions and gone through the facts and circumstances of the case. From the above, facts it is clear that the AO is not sure about the charge on which penalty is to be levied. The AO has also invoked issue of concealment of particulars of income. He is also levied penalty for furnishing of inaccurate particulars of income as is clear from the order of the AO. In view of this facts and circumstances, we are of the view that the AO himself is not sure about the levy of this charge. Since, the issue is covered by the decision of Hon ble Bombay High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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