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TMI Blog2018 (1) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case and also in the light of the decision of the Kerala High Court in K.P.Madhusudhanan v. CIT and affirmed by the Supreme Court (251 ITR 99) the Tribunal is right in law in holding that "as no notice was issued by the Assessing Officer intimating his intention to invoke the explanation to Section 271(1)(1)(c) the appellant had no opportunity of meeting the case under the explanation. Hence, levy of penalty under the explanation, therefore, is not sustainable"? 2. Whether, on the facts and in the circumstances of the case and in the light of sub clause (B) to Explanation 1 and in the absence of a positive finding by the Tribunal that the explanation is bonafide, the Tribunal is right in law and fact and with jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioned on the premise that the assessee had already invested Rs. 22,00,000/- in the construction. A certificate to that effect was also produced before the LIC. In the earlier assessment year, the assessee had made an investment of Rs. 90,000/- which was deducted from the admitted investment. A withdrawal of Rs. 45,000/- from M/s.Anirudhan Associates was also adjusted. The Assessing Officer thus computed the total unexplained income at Rs. 20,65,000/-. In the second appeal, the ITAT allowed a further reduction of Rs. 3,25,000/-. The unexplained income, hence, was worked out at Rs. 17,40,000/-, on which component penalty was imposed at 100% of the tax sought to be evaded. It comes to Rs. 9,28,964/-. 4. The first Appellate Authority allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 271, the Explanation also being included under the provision, the assessee is sufficiently put to notice of the entire provision as available under Section 271(1). In such circumstances, we cannot sustain the order in appeal, as confirmed by the Tribunal, on that ground. 7. The further ground taken by the CIT (Appeals) is that though there may be a justification for making an addition in the computation of income, it does not necessarily follow that the said amount is concealed income or that the explanations offered are not bona fide. We have to notice that if the explanations offered were bona fide, the Tribunal would have allowed the same in the appeal from the assessment itself. The Tribunal, obviously had considered the claim raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; xxx xxx (B) Such person offers an explanation which is not available to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him." 9. Admittedly, there was an unexplained income as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less than Rs. 20,00,000/-. 11. As to the Tribunal having not independently considered, it is to be noticed that the Tribunal found that the CIT (Appeals) has dealt with the matter elaborately and they were in full agreement with the reasoning of the CIT (Appeals). Hence, the order of the CIT (Appeals) merges with the order of the Tribunal and the reasoning of the Tribunal is that available in the CIT (Appeal)'s order. We are not convinced that there is any cause for remand for an independent consideration. 12. As to the litigation policy, admittedly, it is of the year 2015 and there is retrospective effect given. The learned Senior Counsel for the Revenue pointed out the decisions in Commissioner of Income Tax Central-III v. Surya He ..... X X X X Extracts X X X X X X X X Extracts X X X X
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