TMI Blog2017 (10) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) (c), we are of the view that the Assessing Officer was not clear in his understanding whether it is a case of ‘concealment of income’ or ‘furnishing inaccurate particulars of income’. Ambiguity and confusion in the mind of Assessing Officer is writ large. In assessment year 2009-10, it is an undisputed fact that due date for filing return of income u/s. 139(1) had not expired. The assessee had not filed any return of income u/s. 139(1) of the Act. The only return filed by assessee was in response to the notice u/s. 153A. The period relevant to assessment year 2009-10 is ‘specified previous year’ as defined under section 271AAA. The contention of the assessee is that in assessment year 2009-10 penalty u/s. 271(1)(c) is not leviable, if at all, penalty was be levied, it could be u/s. 271AAA of the Act. In the instant case, the date of search is 11.09.2009. The due date for filing return of income u/s. 139(1) in the present case is 30.09.2009. Undisputedly, the assessee had not filed any return of income for the relevant assessment year 2009-10. Thus, all the three conditions are satisfied. Thus, we are of considered view that previous year 2008-09 relevant to assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent years would show that irrelevant limb has not been struck off in the notice. Thus, both the limbs i.e. concealment of income or furnishing inaccurate particulars of income are mentioned in the notice. A perusal of the notice reveals that there is ambiguity in the mind of Assessing Officer with respect to the charge for levying penalty. 2.3 The ld. AR further referring to the order of levying penalty in assessment years 2007-08 and 2008-09 submitted that penalty has been levied after invoking provision of Explanation 5A to Section 271(1)(c) of the Act. The Assessing Officer in penalty order has observed that there is deemed concealment of income, as transactions have not been recorded by the assessee in books of account. The Assessing Officer while concluding the order at the time of ascertaining quantum of penalty mentioned that the assessee has furnished inaccurate particulars of income. 3. The ld. AR made two fold submissions in respect of the manner in which penalty has been levied. The first plank of the argument of the ld. A.R. of the assessee is that in assessment years 2007-08 and 2008-09, the Assessing Officer has wrongly recorded satisfaction for levying penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alment of income are two different expressions, having different connotations. These expressions can not be used inter-changeably. The ld. AR in support of his submissions placed reliance on the following decisions:- i) Dilip N. Shroff Vs. Joint Commissioner of Income Tax, reported as 291 ITR 519 (SC) ii) T. Ashok Pai Vs. Commissioner of Income Tax, reported as 292 ITR 11 (SC) iii) Meherjee Cassinath Holdings Private Limited Vs. Assistant Commissioner of Income Tax, ITA No.2555/MUM/2012, assessment year 2008-09 5. In respect of assessment year 2009-10, the ld. AR submitted that the Assessing Officer wrongly initiated and levied penalty u/s. 271(1) (c) of the Act. The search in case of assessee was conducted on 11.09.2009. The due date for filing return of income u/s. 139(1) had not expired by that time. The assessee had not filed any return of income. Therefore, penalty u/s. 271(1)(c) could not have been levied. If at all, penalty was to be levied, it could have been u/s.271AAA of the Act. The ld. AR referring to the definition of specified previous year defined in Clause-(b) of Explanation to section 271AAA of the Act, the ld. AR pointed that the period relevant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l income; ₹ 10 Lakhs in assessment year 2007-08 and ₹ 4.25 Lakhs in assessment year 2008-09. While recording satisfaction for initiating penalty proceedings, the Assessing Officer observed that penalty proceedings u/s. 271(1) (c) are initiated for furnishing inaccurate particulars of income. While levying penalty, the Assessing Officer invoked Explanation 5A to Section 271(1) (c) and observed as under: 6. From the above explanation it is crystal clear that the assessee satisfies all the conditions for levy of penalty and there is a deemed concealment of income. The transaction as reflected in the seized documents has come to the light in view of the search action. These transactions have not been recorded in the assessee s books of accounts. A mere submission that the assessee has disclosed the impugned sum while filing the return of income and payment of taxes thereafter, will not come to help for non levy of penalty in view of specific provisions reproduced above. 7. I am, therefore, satisfied that the assessee has without any reasonable cause furnished inaccurate particulars of income for Asstt. Year 2007-08 and made himself liable for levy of penalty. I , the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst furnishing of information or particulars. 12. In the present case, penalty u/s. 271(1) r.w.s 5A has been levied in respect of additional income offered by assessee representing investment made in the flat. The Assessing Officer observed that investment made for purchasing flats has not been reflected in the books of assessee. The relevant extract of the findings of Assessing Officer from order levying penalty have seen extracted above in para 9. Thus, it is a case of concealment of income. In the order levying penalty, the Assessing Officer has remarked that it is a case of deemed concealment of income. After having coming to conclusion that it is a case of deemed concealment, the Assessing Officer thereafter held that penalty u/s. 271(1)(c) has been levied on the assessee for furnishing inaccurate particulars of income. After examining the order passed u/s. 271(1) (c), we are of the view that the Assessing Officer was not clear in his understanding whether it is a case of concealment of income or furnishing inaccurate particulars of income . Ambiguity and confusion in the mind of Assessing Officer is writ large. Under such circumstances, penalty u/s. 271(1) (c) is not su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year. In the instant case, the date of search is 11.09.2009. The due date for filing return of income u/s. 139(1) of the Act in the present case is 30.09.2009. Undisputedly, the assessee had not filed any return of income for the relevant assessment year 2009-10. Thus, all the three conditions are satisfied. Thus, we are of considered view that previous year 2008-09 relevant to assessment year 2009-10 falls within Clause (i) of the definition of specified previous year as given in Explanation (b) to Section 271AAA. The Assessing Officer has erred in invoking the provisions of section 271(1)(c) of the Act in assessment year 2009-10. 14. The Co-ordinate Bench of the Tribunal in the case of Shri Mangesh Tupe Vs. ACIT (supra.) under similar circumstances deleted the levy of penalty u/s. 271(1) (c) of the Act. The relevant extract of the findings of Tribunal are reproduced as under : 34. Insofar assessment year 2008-09 is concerned, a preliminary issue has been raised by the assessee, which is to the effect that the order passed by the Assessing Officer levying penalty under Section 271(1)(c) of the Act is null and void. The aforesaid plea is raised on the basis of Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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