TMI Blog2018 (6) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... Per Bench: These four appeals by the assessee are directed against the separate orders each dated 27.04.2015 of the ld. CIT(A)-23, New Delhi. 2. Since, the appeals pertained to the same assessee and were heard together, so, these are being disposed off by this common order for the sake of convenience and brevity. 3. Common issue involved in all these appeals relates to the confirmation of penalty levied by the AO u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act). 4. At the first instance, we will deal with the appeal for the assessment year 2007-08 in ITA No. 3849/Del/2015. Following grounds have been raised in this appeal: 1. That the learned CIT(A) has erred in law and facts by confirming the penalty of ₹ 3,02,187/- levied under section 271(1)(c) of the Act by the learned AO and therefore the learned AO should be directed to delete the penalty. 2. That the appellant craves liberty to add, amend, alter and delete any grounds of appeal before the final hearing. 5. Facts of the case in brief are that a search and seizure operation was conducted in Jaksons Group of cases on 10.02.2010 and the assessment proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 ITR 543 (Delhi)], order dated 26/08/2010 in ITA No. 1420/2009. Copy of the said judgment is annexed herewith as Annexure 13. Petition for Special Leave to Appeal (Civil) No(s). 18564/2011 filed against the said judgment has also been dismissed by the Hon'ble Supreme Court. Copy of the said judgment is annexed herewith as Annexure 14. Further reliance is also place on the judgment of the Hon'ble ITAT - Delhi Bench E in the case of Asstt Commission of Income Tax Vs Nitrex Chemcials India (P) Limited ITA No 5761/Del/2012 of Asstt Year 2005-06 dated 31st May 2013 (copy of the said judgement is annexed herewith as Annexure 15). ( iii) That in the instant case, there was no finding that any details supplied by the assessee in its return were found to be incorrect or erroneous or false. Assessee just made a claim of expenditure in support of which he was unable to furnish the requisite bills. A mere making of the claim, which is not sustainable in law by itself, will not amount to furnishing of inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to inaccurate particulars. In this regard, reliance is placed on the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mens rea is evil intention or knowledge of the wrongfulness of the act that a person commits. Only when such mental attitude is present in an act, the person who commits it is said to have acted deliberately in defiance of law or is guilty of dishonest conduct. Since in this case, mens rea is absent penalty u/s 271(1)(c) is not imposable. ( viii) In view of the above facts and legal position, the penalty levied by the learned AO is bad and therefore the learned AO should be directed to delete the penalty levied. Your good office is requested to consider the above submission while passing the order and oblige. 7. The ld. CIT(A) after considering the submissions of the assessee sustained the penalty of ₹ 3,02,187/- by observing in paras 4.1 to 4.3 of the impugned order as under: 4.1 I have considered the facts of the case and the submissions made. Ld. AR has raised the argument concealment penalty is not imposable as there was no intention to evade tax. This argument is not acceptable as the law laid down in Dilip N Shroff case [291 ITR 519 (SC)], wherein it was held that mens rea was an essential requirement for imposing concealment penalty u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appears that the said amount was not paid during the previous year or even up to the due date of filing the IT return. If the appellant had not paid the service tax up to the date of filing of IT return, it was incumbent on the appellant to disallow the said expense in the computation of income filed with the said IT return. To the extent the appellant failed to add back the said amount of unpaid service tax it has to be held that appellant filed inaccurate particulars of its income, as the fact of not having paid the said amount was well within the knowledge of the appellant at the time when the IT return was verified and tiled. I hold accordingly. 4.3 In view of the above, penalty is sustained @ 100% on the unpaid service tax amounting to ₹ 10,07,290/-. On all other disallowances, the penalty imposed is canceled. Accordingly, penalty is sustained to the extent of ₹ 3,02,187/- and appellant gets relief of ₹ 8,31,553/-. 8. Now the assessee is in appeal. The ld. Counsel for the assessee submitted that the income of the assessee was subjected to book profit u/s 115JB of the Act and the income has been assessed at book profits by deeming the same to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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