TMI Blog2018 (3) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... 04/Del/2016 - - - Dated:- 26-2-2018 - Sh. N. K. Saini, AM And Sh. Sudhanshu Srivastava, JM For The Assessee : Sh. Amit Goyal , CA And Sh. Nipun Mittal, CA For The Revenue : Sh. S. R. Senapati, Sr. DR ORDER Per N. K. Saini, AM: These appeals by the assessee for the assessment years 2001-02 to 2004- 05 are directed against the separate orders each dated 25.02.2016 of ld. CIT(A)- 29, New Delhi. 2. Since, the issue involved is common and the appeals were heard together so, these are being disposed off by this common order for the sake of convenience and brevity. 3. At the first instance, we will deal with the appeal in ITA No. 2201/Del/2016 for the assessment year 2001-02. The only grievance of the assessee in this appeal relates to the confirmation of penalty of ₹ 1,42,033/- levied by the AO u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act). 4. Facts of the case in brief are that a search and seizure operation u/s 132 of the Act was carried out in Accurate Group of cases on 26.07.2006 and the assessee was also covered under search. Accordingly, notice u/s 153A of the Act was issued and served upon the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a clear finding about the charge of penalty. It is incumbent upon the AO to state whether penalty was being levied for concealment of income or for furnishing inaccurate particulars of income. In the absence of such findings, the order would be bad in law (Manu Engg. Works 122 ITR 306 (Guj); New Sarathia Engg. Co. (282 ITR 642) (Guj); Padma Ram Bharall 110 ITR 54 (Guj) 7. It was further submitted that even on merit, this was not a case for levy of the penalty and stated as under: .......... During the course of assessment proceedings, the assessee has suo-moto furnished to AO that value of scrap for the year is ₹ 3,,97,550/-which was omitted to be shown in the return of Income. The AO however made addition of ₹ 33,92,000/- as per his own methodology, Instead of income offered by the assessee. In appeal, the ld. CIT(A) deleted the disallowance/addition made by the AO holding it to be non sustainable and upheld the addition only to the extent of ₹ 3,97,850/- as offered by the assessee. The AO has levied penalty of ₹ 142033/- under section 271(1)(c) in respect of this addition of ₹ 3,97,850/- offered by the assessee and sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been detected during the search. Therefore, the AO had rightly made the addition for such concealment. As regards to the reference to the objection of the assessee that the satisfaction was not recorded by the AO in the assessment order regarding initiation of penalty, the ld. CIT(A) observed that it was to be mentioned that this issue was not agitated or disputed before the AO during the penalty proceedings, therefore, the objection of the assessee was not tenable. The ld. CIT(A) sustained the penalty u/s 271(1)(c) of the Act levied by the AO. 10. Now the assessee is in appeal. The ld. Counsel for the assessee reiterated the submissions made before the authorities below and further submitted that one of the addition made in the assessment order was that of scrap sales of ₹ 33,92,000/- which was made by the AO on estimated basis i.e. @1% of total raw material consumed. It was further submitted that the assessee during the course of assessment proceedings suo moto furnished to the AO that value of scrap for the year under consideration amounting to ₹ 3,97,850/- was omitted to be shown in the return of income. However, the AO made an addition of ₹ 33,92,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty levied was on the basis of addition made by the AO in consideration of the seized material. Therefore, the ld. CIT(A) was fully justified in confirming the penalty levied by the AO. 12. We have considered the submissions of both the parties and perused the material available on record. As regards to this objection of the ld. Sr. DR that the legal issue argued by the ld. Counsel for the assessee was not raised before the authorities before is concerned. It is noticed that the ld. CIT(A) in paras 5 to 5.3 of the impugned order mentioned the arguments of the assessee on the similar issue and adjudicated this issue. The relevant findings have been given in para 7.6 of the impugned order which read as under: 7.6 With reference to the objection of the appellant that the satisfaction was not recorded by the AO in the assessment order regarding initiation of penalty, it is to be mentioned that this issue was not agitated or disputed before the AO during the penalty proceedings and as mentioned above, while imposing penalty, the AO has given his clear finding in the penalty order. Therefore, this objection of the appellant is also not tenable. 13. On the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of this Court rendered in the case of Commissioner of Income Tax Vs Manjunatha Cotton and Ginning Factory (2013) 359 ITR 565. 4. In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court. The appeal is accordingly dismissed. 16. It is also relevant to point out that the SLP filed by the department against the aforesaid order has been dismissed by the Hon ble Apex Court vide order dated 05.08.2016. It is also noticed that the Hon ble Karnataka High Court considered the ratio laid down in its own judgment in the case of CIT Vs Manjunatha Cotton Ginning Factory reported at (2013) 359 ITR 565 (supra) wherein it has been held (head note) as under: Chapter XXI of the Income-tax Act, 1961, enacts provisions for the levy, imposition and collection of penalty. The general principles relating to penalty or concealment of income are: (a) penalty under section 271(1)(c) is a civil liability; (b) mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities; (c) willful concealm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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