TMI Blog2018 (3) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... peal read as under:- 1. That the learned Commissioner of Income Tax (Appeals)-35, New Delhi has erred both in law and on facts in upholding penalty of ₹ 2,11,086/- in an order dated 23.6.2017 under section 271(1)(c) of the Act. 2. That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that in absence of any specific show cause notice having been issued, the levy of penalty is otherwise wholly misconceived. 3 That furthermore that since no satisfaction was recorded in the order of assessment, penalty levied is otherwise was without jurisdiction. 4 That the learned Commissioner of Income Tax (Appeals) has sustained the penalty by failing to appreciate that assessment proceedings are not conclusive and as alleged incorrect claim does not tantamount to furnishing of inaccurate particulars, when the details supplied by the assessee in return are not found to be incorrect or erroneous or false. 5 That the learned Commissioner of Income Tax (Appeals) has further erred both in law and on facts in imposing the penalty without considering submission of assessee and without granting any opportunity of being heard much less valid and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears to me that you:- * have without reasonable cause failed to furnish me return of income which you were required to furnish by notice given under section 22(1)/22(2)/34 of the Indian Income Tax Act, 1922 or which you were required to furnish under section 139(1) or by notice given under setion 139(2)/148 of the Income Tax Act, 1961 no ..dated .or without reasonable cause failed to furnish it within the time allowed and the manner required by the said section 139(1) or by such notice. * have without reasonable cause failed to comply with a notice under section 22(4)/23(2)m of the Indian Income Tax Act, 1922 or under section 142(1) / 143(2) of the Income Tax Act, 1961 No .dated * have concealed the particulars of your income and have furnished inaccurate particulars of such income. 6.1 After perusing the aforesaid contents of the Notice dated 30.3.2006, I am of the view that the AO has initiated the penalty for concealment of particulars of income or furnishing of inaccurate particulars, which is contrary to the provisions of law. I am of the view that notice issued by the AO u/s. 271(1) read with Section 274 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/2013 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 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. The Tribunal, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appeal is rejected. 8. Keeping in view of the aforesaid finding of the Ld. CIT(A), we are of the considered view that the AO has passed the assessment order wherein the AO has recorded his satisfaction on the page 2, 2nd para viz. I am sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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