TMI Blog2018 (3) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... R PER H.S. SIDHU, JM This appeal by the Assessee is directed against the Order of the Ld. Commissioner of Income Tax (Appeals)-7, New Delhi dated 29.12.2015 pertaining to assessment year 2008-09. 2. The grounds of appeal raised in the assessee s appeal read as under:- 1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) {CIT(A)} is bad, both in the eye of law and on the facts. 2. On the facts and circumstances of the case, the ld. CIT(A) has erred, both on facts and in law, in confirming the penalty of ₹ 2,30,367/- levied by the AO under section 271(1)(c) of the Act on account of disallowance of expenses for ₹ 677748/- made by the AO. 3. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the penalty levied on said addition is not tenable as the disallowance itself is against facts and hence not sustainable. 4. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in levying a penalty ignoring the fact that no penalty can be levied merely on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anjunatha Cotton and Ginnig Factory Ors. (2013) 359 ITR 565 - Apex Court decision in the case of CIT Anr. Vs. M/s SSA s Emerald Meadows in CC No. 11485/2016 dated 05.8.2016. 5. On the contrary, Ld. DR relied upon the orders of the authorities below. 6. We have heard both the parties and perused the relevant records, especially the orders of the revenue authorities alongwith the provisions of law as well as the case law cited by the Ld. Counsel of the Assessee. We have perused the Notice dated 24.12.2009 issued by the AO for initiation of penalty and directing the assessee to appear before him. For the sake of convenience, some of the contents of the penalty Notice dated 24.12.2009 are reproduced as under:- ..it appears to me that you:- *have without reasonable cause failed to comply with a notice under section 22(4)/23(2) of the Indian Income Tax Act, 1922 or under section 142(1)/143(2) of the Income Tax Act, 1961. * have concealed the particulars of your income or .furnished inaccurate particulars of such income .. 6.1 After perusing the aforesaid contents of the Notice dated 24.12.2009, we are of the view that the AO has initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities alongwith the relevant records available with us. Firstly, we have perused the Notice dated 26.3.2013 issued by the AO for initiating the penalty and directing the assessee to appear before him at 11.30 AM on 26/04/2013 and issued a Show Cause to the assessee stating therein that ..you have concealed the particulars of your income or furnished inaccurate particulars of such income . After perusing the notice dated 26.3.2013 issued by the AO to the assessee, we are of the view that the AO has initiated the penalty for furnishing inaccurate particulars of income or concealment of income as well as in the penalty order dated 30.9.2013 AO has stated that he is satisfied that the assessee has concealed particulars of his income, which is contrary to law. In view of above, the penalty is not sustainable in the eyes of law. Our aforesaid view is fortified by the following decisions:- 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 holding the notice issued by the Assessing Officer under section 274 read with Section 271(1)(c) to be bad in law as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 31.12.2007 issued by the AO to the assessee, we are of the view that the AO has initiated the penalty for furnishing inaccurate particulars of income/concealment of income, but in the penalty order dated 06.11.2009 he has stated that he is satisfied that the assessee has furnished the inaccurate particulars of income. 7.1 However, the Ld. CIT(A) has given clear finding regarding the furnishing of inaccurate particulars. For the sake of convenience, the relevant para no. 5.3.1 of the impugned order passed by the Ld. CIT(A) is reproduced as under:- 5.3.1 The above findings of the Ld. CIT(A) clearly establishes that the appellant has concealed the income of ₹ 26,50,500/- and did not declare in the return of income inspite of admitting a disclosure of ₹ 40,00,000/- during survey. Thus, the appellant has furnished inaccurate particulars of his income. The facts of the case clearly reveal that the appellant tried to evade payment of taxes by furnishing inaccurate particulars of income. Therefore, I hold that the AO was fully justified in levying the penalty u/s. 271(1)(c) of the Act. The penalty levied by the AO is upheld. This ground of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anjunatha Cotton and Ginning Factory (2013) (7) TMI 620-Karanataka High Court. Thus 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 decided in favour of assessee. ii) CIT Anr. Vs. M/s SSA s Emerald Meadows Hon ble Supreme Court of India reported in 2016 (8) TMI 1145 Supreme Court. The Apex Court held that High Court order confirmed (2015) (11) TMI 1620 (Supra) Karnataka High Court. Notice issued by AO under section 274 read with section 271(1)(c) to be bad in law as it did not specify which limb of Section 271(1) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income Decided in favour of assessee. 8.1 In the background of the aforesaid discussions and respectfully following the precedents, we delete the penalty in dispute and decide the issue in favor of the assessee and against the Revenue. 7. Keeping in view of the aforesaid discussions, we cancel the penalty in dispute by respectfully following the aforesaid decisions and allow the appeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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