TMI Blog2018 (2) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 30-1-2018 - SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER For The Assessee : Shri Ajay Vohra, Sr. Adv. Shri Rohit Jain, Adv. For The Revenue : Shri Ravi Kant Gupta, Sr. DR ORDER PER B.P. JAIN, ACCOUNTANT MEMBER, This appeal filed by the assessee is directed against the order dated 08.12.2015 of Commissioner of Income Tax (Appeals) - 25, Delhi and relates to assessment year 2009-10. 2. The assessee has raised the following grounds of appeal: 1. That the CIT (Appeals) erred on facts and in law in not holding that the impugned order dated 14.09.2015 levying penalty of ₹ 2,91.83.830 under section 271 (1)(c) of the Income-tax Act, 1961 the Act is without juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in not appreciating that penalty was not leviable considering that: (i) the disallowance was made/ sustained in the quantum proceedings, simply on account of bona fide difference of opinion; (ii) the claim made by the appellant was properly explained and the explanation furnished was bona fide; and (iii) all facts material to the claim were duly disclosed by the appellant. 3. Brief facts of the case are that the assessee is a joint venture company which filed return of income declaring income of ₹ 55,69,73,660/-. The assessee- appellant claimed additional deprecation amounting to ₹ 8,58,60,045/- u/s 32(1)(iia) of the Act. The said claim was disallowed by the AO and the income was assessed at ₹ 64,34,83,710/-. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be imposed will lead to an inference of non-application of mind. 6. In the aforesaid judgment it was held as under: 59. As the provision stands, thepenalty proceedings can be initiated on various groundsset out therein. If the order passed by the authoritycategorically records a finding regarding the existence of any said grounds mentioned therein and then penalty proceedings is initiated, in the notice to be issued under section 274, they could conveniently refer to the said order which contains the- satisfaction of the authority which has passed the order. However, if the existence of the conditions could not be discerned from the said order and if it is a case of relying on deeming provision contained in Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases there may be overlapping of the two offences but in such cases the initiation of the penalty proceedings also must be for both the offences. But drawing up penalty proceedings for one offence and finding the assessee guilty of another offence or finding him guilty for either the one or the other cannot be sustained in law. It is needless to point out the satisfaction of the existence of the grounds mentioned in section 271(1)(c) of the Act when it is a sine qua non for initiation or proceedings, the penalty proceedings should be confined only to those grounds and the said grounds have to be specifically stated so that the assessee would have the opportunity to meet those grounds. After, he places his version and tries to substantiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to come to the conclusion that whether is it a case of concealment of income or is it a case of furnishing of inaccurate particulars. The apex court in the case of Ashok Pal reported in [2007] 292 ITR 11 (SC) at page 19 has held that concealment of income and furnishing inaccurate particulars of income carry different connotations. The Gujarat High Court in the case of Manu Engineering Works reported in [1980] 122 ITR 306 (Guj) and the Delhi High Court in the case of CIT v. Virgo Marketing P. Ltd. reported in [2008] 171 Taxman 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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