TMI Blog2019 (2) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... That the Ld. CIT(A) has erred both in law and on facts in upholding penalty of ₹ 2,10,000/- in an order dated 6.6.2018 u/s. 271(1)(c) of the Act. ii) That the Ld. CIT(A) has failed to appreciate that in absence of any specific show cause notice having been issued, the levy of penalty is otherwise wholly misconceived. iii) That furthermore that since no satisfaction was recorded in the order of assessment, penalty levied is otherwise was without jurisdiction. iv) That the Ld. CIT(A) 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. v) That the Ld. CIT(A) 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 proper opportunity and therefore the order made is contrary or principles of natural justice and hence a nullity. vi) That the Ld. CIT(A) has failed to appreciate the factual matrix of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issued for levying the penalty in dispute. For the sake of convenience, we are reproducing herewith the contents of the show cause notice dated 14.07.2015 as under:- Sub:- Penalty proceedings under section 271(1) of the Income Tax Act, 1961 Assessment Year 2012-13 Show Cause Notice reg. Reference is invited to the above mentioned penalty proceedings which are pending for finalization. 2. Since the above penalty proceedings are now getting bared by limitation, you are hereby given an opportunity to show cause as to why penalty should not be levied upon you under the provisions of Income Tax Act as mentioned above. You are requested to please file your explanation, if any to the show cause notice being issued to you on 25.7.2016 at 11.30 am. Please note that in case of your failure to file explanation on the date fixed for hearing, it will be presumed that you have no explanation to offer and the penalty proceedings shall be finalized on the basis of material available on records and on merits of the case . 5.1 We further note from para no. 2 at page no. 1 of the Penalty Order dated 20.03.2017 and found that AO has himself written that Penalty Proceedings u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of assessee. iii) ITAT, A Bench, New Delhi decision dated 05.12.2017 in the case of Ashok Kumar Chordia vs. DCIT passed in ITA No. 5788 to 5790/Del/2014 wherein the Tribunal has observed as under:- 7. We have heard both the parties and perused the orders passed by the Revenue Authorities 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiating the penalty and directing the assessee to appear before him at ---- -----AM/PM on --------200------ and issued a Show Cause to the assessee stating therein that why an order imposing the penalty of amount should not be made u/s. 271(1)(c) of the I.T. Act, 1961. After perusing the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee, has relied on the decision of the Division Bench of this Court rendered in the case of Commissioner of Income Tax vs. Manjunatha 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
