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2019 (4) TMI 619

[2012 (12) TMI 981 - HIGH COURT OF GUJARAT] as observed that while issuing notice under section 271(1)(c) r.w.s. 274 provide an opportunity to explain as to why penalty be not imposed. If an Assessing Officer used expression “or” in between the concealment of income/furnishing inaccurate particulars, then that show cause notice be not fatal to the proceedings, but while visiting the assessee with penalty the ld.AO ought to have recorded a specific finding, for which breach, he has visited the assessee with penalty i.e. whether he has visited the assessee with penalty for concealment of income or furnishing inaccurate particulars of income. - In the penalty order he cannot use both the expression. - As AO was not specific in his find .....

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d view that the assessee company has clearly committed a default u/s. 271(l)(c) of the Act by concealing the particulars of income/furnishing inaccurate particulars of its income to the tune of ₹ 39,11,404/-. The assesses company is therefore, liable for penalty U/s 271(1)(c) of the IT Act with reference to the addition of ₹ 39,11,404/-. Accordingly, the minimum penalty i.e.100% of the tax evaded on the concealed income comes to ₹ 4,55,318/- and the maximum penalty i.e. 300 % of the tax evaded of the concealed income comes to ₹ 13,65,954/-. Therefore, after considering the facts of the case, the minimum penalty i.e. 100% of the tax evaded on the concealed income comes to ₹ 4,55,318/- is levied. 4. With assistan .....

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d penalty was imposed for concealing particulars of income. In light of this, we may peruse the decision of this Court in case of Manu Engineering Works (supra). In the said decision, the Division Bench came to the conclusion that language of "and/or" may be proper in issuing a notice for penalty, but it was incumbent upon the Assessing Authority to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by them. If no such clear cut finding is reached by the authority, penalty cannot be levied. It was a case in which in final conclusion the authority had recorded that "I am of the opinion that it will have to be said that .....

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