TaxTMI 
TaxTMI 
2019 (5) TMI 1074
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....nical ground. The assessee had also raised additional ground of appeal stating that the ld. CIT(A) erred in not appreciating the judicial position that if no proper satisfaction is recorded by the ld. AO in the assessment order u/s.143(3) of the Act dated 21/11/2011 for initiation of penalty u/s.271(1)(c) of the Act then the levy of penalty is bad in law. We find that admission of this additional ground of appeal goes to the root of the matter and does not involve any fresh investigation of facts and accordingly, the same is admitted for the purpose of adjudication. 2.2. It would be pertinent to note the relevant facts in this regard. We find that the assessee is a partnership firm engaged in the business of manufacturing of Everest Masala Products. The assessee filed its return of income for the A.Y.2009-10 on 29/09/2009 declaring the total income of Rs. 20,29,83,000/-. The assessment was completed u/s.143(3) of the Act on 29/11/2011 determining total income of the assessee at Rs. 20,46,60,930/-. 2.3. In the said assessment, the ld. AO made following disallowances: (i) Disallowance of expenses under the head "Miscellaneous Expenses‟, general expenses, sales promotion ....
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....ns were made during the assessment proceedings are as under: (i)During the course of assessment proceedings, it was noticed that the assessee has shown long term capital gain of Rs. 38, 26,076 on transfer of right in the offices in the Building named as Platinum Techno Park, Vashi. The assessee, accordingly, asked to furnish the complete details in this regard. On verification of details, it was seen that the assessee got final allotment of offices on 04.08,2006 and the rights were sold /transferred on 17.12.2008, as the holding period of the right was less than 36 months, therefore, the surplus of Rs. 50,00,000 arising out of the transaction was taxed as income from the other sources .The penalty proceedings u/s.271(1)(c) of the I.T. Act were initiated for concealment and furnishing inaccurate particulars of the income . (Underlining provided by us) 2.5. Hence, it could be safely concluded that in page 1, the ld. AO had mentioned the word "or" without mentioning the specific charge of offence committed by the assessee. In page 2 para 5 of the penalty order, the ld. AO with reference to the show-cause letter dated 06/02/2014 that was issued to the assessee stated that the sh....
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....levying the penalty on different reason. All these facts clearly go to prove that the Assesseing Officer has not specified as to the offence committed by the assessee i.e., whether the assessee had concealed its particulars of income or furnished inaccurate particulars of income or committed both the offences. The above facts narrated clearly prove that there is absolutely no clarity of mind of the ld. AO for levying penalty on the offence committed by the assessee. In this regard, we would like to place reliance on the decision of Hon'ble Jurisdictional High court in the case of CIT vs. Shri Samson Perinchery in ITA No.1154 of 1014 with ITA 953 of 2014 with ITA No.1097 of 2014 with ITA No.1226 of 2014 dated 05/01/2017 wherein the facts and decision rendered thereof are as under:- "These Appeals under Section 260A of the Income Tax Act, 1961 (the Act), challenge a common order dated 11th October, 2013 passed by the Income Tax Appellate Tribunal (the Tribunal). The common impugned order deleted the penalty imposed upon the Respondent Assessee for the Assessment Years 200304, 200405, 200506 and 200607. 2. All these appeals raises an identical question of law save the difference....
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....as held that levy of penalty has to be clear as to the limb for which it is levied and the position being unclear penalty is not sustainable. Therefore, when the Assessing Officer proposes to invoke the first limb being concealment, then the notice has to be appropriately marked. Similar is the case for furnishing inaccurate particulars of income. The standard proforma without striking of the relevant clauses will lead to an inference as to nonapplication of mind." 5 The grievance of the Revenue before us is that there is no difference between furnishing of inaccurate particulars of income and concealment of income. Thus, distinction drawn by the impugned order is between Tweedledum and Tweedledee. In the above view, the deletion of the penalty, is unjustified. 6 The above submission on the part of the Revenue is in the face of the decision of the Supreme Court in Ashok Pai v/s. CIT 292 ITR 11 [relied upon in Manjunath Cotton & Ginning Factory (supra)] - wherein it is observed that concealment of income and furnishing of inaccurate particulars of income in Section 271(1)(c) of the Act, carry different meanings/ connotations. Therefore, the satisfaction of the Assessing Officer ....