TMI Blog2019 (8) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent : Shri Rabin Choudhury, DR ORDER PER S.S.GODARA, JUDICIAL MEMBER:- These two assessee s appeal for assessment year(s) 2009-10 2010- 11 arise against the Commissioner of Income Tax (Appeals)-6, Kolkata s separate orders dated 18.07.2018 09.07.2018 passed in case Nos.10011 10013/CIT(A)-6/Kol/2017-18, upholding Assessing Officer s action imposing penalty of ₹6,70,345/- and ₹7,66,229/- in proceedings u/s 271(1)(c) of the Income Tax Act, 1961; in short of the Act . Heard both the parties. Case file perused. 2. The assessee s sole substantive grievance raised in the instant appeal(s) challenges correctness of both the lower authorities action imposing the penalty in issue of ₹6,70,345/- and ₹7,66,229 u/s 271(1)(c) of the Act. It emerges from the relevant penalty notice(s) dated 30.03.2017 19.03.2013 that the Assessing Officer did not specify as to whether the assessee is accused of concealment of particulars of any taxable income or it had furnished inaccurate particulars of such income. This tribunal s co-ordinate bench s decision in Nishith Kumar Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to the said order which contains the satisfaction of the authority which has passed the order. However, if the existence of the conditions could not be discerned from the said order and if it is a case of relying on deeming provision contained in Explanation-1 or in Explanation-1(B), then though penalty proceedings are in the nature of civil liability, in fact, it is penal in nature. In either event, the person who is accused of the conditions mentioned in Section 271 should be made known about the grounds on which they intend imposing penalty on him as the Section 274 makes it clear that assessee has a right to contest such proceedings and should have full opportunity to meet the case of the Department and show that the conditions stipulated in Section 271(1)(c) do not exist as such he is not liable to pay penalty. The practice of the Department sending a printed farm where all the ground mentioned in Section 271 are mentioned would not satisfy requirement of law when the consequences of the assessee not rebutting the initial presumption is serious in nature and he had to pay penalty from 100% to 300% of the tax liability. As the said provisions have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act to initiate penalty proceedings once he is satisfied in the course of any proceedings that there is concealment of income or furnishing of inaccurate particulars of total income under clause (c). Concealment, furnishing inaccurate particulars of income are different. Thus the Assessing Officer while issuing notice has to come to the conclusion that whether is it a case of concealment of income or is it a case of furnishing of inaccurate particulars. The Apex Court in the case of Ashok Pai reported in 292 ITR 11 at page 19 has held that concealment of income and furnishing inaccurate particulars of income carry different connotations. The Gujarat High Court in the case of MANU ENGINEERING reported in 122 ITR 306 and the Delhi High Court in the case of VIRGO MARKETING reported in 171 Taxman 156, has 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Only when no explanation is offered or the explanation offered is found to be false or when the assessee fails to prove that the explanation offered is not bona fide, an order imposing penalty could be passed. m) If the explanation offered, even though not substantiated by the assessee, but is found to be bona fide and all facts relating to the same and material to the computation of his total income have been disclosed by him, no penalty could be imposed. n) The direction referred to in Explanation IB to Section 271 of the Act should be clear and without any ambiguity. o) If the Assessing Officer has not recorded any satisfaction or has not issued any direction to initiate penalty proceedings, in appeal, if the appellate authority records satisfaction, then the penalty proceedings have to be initiated by the appellate authority and not the Assessing Authority. p) Notice under Section 274 of the Act should specifically state the grounds mentioned in Section 271(1)(c), i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income q) Sending printed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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