TMI Blog2018 (5) TMI 1728X X X X Extracts X X X X X X X X Extracts X X X X ..... This is an appeal filed by the revenue against the order of the CIT(A)- 3, Patna dated 21.10.2016 for the assessment year 2009-2010. 2. The sole issue involved in this appeal is that the CIT(A) erred in deleting the amount of ₹ 53,28,163/- levied u/s.271(1)(c) of the Act by the Assessing Officer. 3. At the outset, ld A.R. of the assessee by filing copy of notice issued u/s.271(1)(c) of the Act by the Assessing Officer dated 26.12.2011 in Assessment year 2009-2010 submitted that the Assessing Officer in the said notice has stated as under: have concealed the particulars of your income or furnished inaccurate particulars of such income. 4. Thus, it is not clear from the said notice issued u/s.271(1)(c) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income in respect of income of ₹ 20,00,000/-. The appellant has countered the above finding of the AO by bringing out the contention that Explanation 5 to sec. 271(1)(c) was not applicable as the search in the case of the appellant took place after 01.06.2007. Further, the appellant has also controverted the AO's claim regarding the conclusive finding of any concealment of income arrived at in the assessment order passed u/s 153A of the Act or in the penalty order u/s 271(1)(c) of the Act. The appellant has also referred to the deficiency of notice issued u/s 274 r.w.s. 271(1)(c) wherein the AO did not tick mark the relevant applicable part of the said notice neither striked out inapplicable portion of the said notice. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents or transactions. The AO has not given any finding either in the assessment order or in the penalty order to conclude that the income disclosed u/s 153A was concealed income as per explanation 5A to sec. 271(1)(c) of the Act. In fact, the AO has referred to Explanation '5' which is not relevant to this case. The issue was also remanded to the AO during current appellate proceedings and even in the remand report dated 22.09.2014 of ACIT, Central Circle-1, Ranchi duly forwarded by the Range Head, no finding has been given to relate the disclosures made by the appellant are falling within the two condition of Explanation 5A to sec. 271(1)(c) of the Act. With regard to the defects in the notice u/s 271(1)(c) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Vs Agarwal Rolling Mills Ltd (2014) 88 CCH 036 ISCC wherein the Hon'ble Supreme Court held that no penalty can be imposed u/s 271(1)(c) of the Act where the addition was made on the amounts surrendered by the assessee. In this case, the assessee had received share application money to the tune of ₹ 1.49 crores during the year. During the assessment proceedings, the assessee could not submit the documents related to the amount of ₹ 61 lakhs received from 12 applicants. Accordingly, share application money of ₹ 61 lakhs was surrendered by the assessee. The AO treated ₹ 61 lakhs as income and initiated penalty proceedings u/s 271(1)(c) of the Act. Commissioner of Income-tax (Appeals) ( CIT(A) ) and ITAT held the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings are being initiated for furnishing of inaccurate particulars or for concealment of income makes the penalty order liable for cancellation. In the instant case also, from the copy of notice filed by ld A.R. of the assesee, it is observed that the Assessing Officer has not explicitly specified in the penalty notice as to whether penalty proceedings are being initiated for furnishing of inaccurate particulars or concealment of income. Therefore, penalty order passed by the Assessing Officer is liable to be cancelled. Therefore, we confirm the order of the CIT(A) and dismissed the ground of appeal of the revenue. 8. In the result, appeals filed by the revenue is dismissed . Order pronounced in the open court on 29/05/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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