TMI Blog2019 (8) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present case. No distinguishing facts or features could be pointed by the revenue. Therefore, no fault could be found in the adjudication of Ld. First appellate authority - the revenue s appeal stands dismissed - ITA No.6250/Mum/2017 - - - Dated:- 9-8-2019 - Sandeep Gosain, Judicial Member and Manoj Kumar Aggarwal, Accountant Member Revenue by : Chaudhary Arun Kumar- Ld.DR Assessee by : Shri Prakash Jhunjhunwala-Ld. AR ORDER Aforesaid appeal by revenue for Assessment Year [in short referred to as AY ] 2010-11 contest the order of Ld. Commissioner of Income-Tax (Appeals)-18, Mumbai, [in short referred to as CIT(A) ], Appeal No. CIT(A)- 18/IT-11/ITO-11(2)(1)/16-17 dated 09/06/2017 on following grounds of appeal: - 1. On the facts and in the circumstances of the case and in law, whether the learned CIT(A) erred in deleting the penalty without appreciating the facts that the AO has levied penalty on the concealment of income that came to light during the course of the survey proceedings u/s. 133A of the I.T. Act. 2. On the facts and in the circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: - g) In view of the facts enumerated above and on considering relevant facts and circumstances of the case in a fair and objective manner it is concluded without doubt that the assessee has concealed particulars of income / has furnished inaccurate particulars within the meaning of explanation 1 to Section 271(1)(c) of the I T Act, 1961. Since the assessee has failed to offer an explanation, amount added in computing the total income represents the income in respect of which fresh orders have been conceded with thin the meaning of explanation 1(A) of Section 271(1)(c). Thus, I am of the considered view that this is a fit case for imposition of penalty u/s 271(1)(c) of the I.T.Act, 1961. 6. Accordingly, ₹ 2,25,73,110/- which represent addition made in assessment order which has been confirmed in the further appeal is deemed the income in respect of which inaccurate particulars of income have been furnished/particulars of income has been concealed. Some minor variations have been made in the quantum of penalty vide rectification orders u/s 154 dated 09/06/2016 and 03/10/2016. 3. Aggrieved, the assessee contested the levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. Taking up of penalty proceedings on one limb and finding the assessee guilty of another limb is bad in law. The Hon'ble Jurisdictional High Court of Bombay in the case of Shri Samson Perinchery (ITA No. 1154 of 2014} decided that- The above submission on the part of the Revenue is in the face of the decision of the Supreme Court in Ashok Pai vs.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 with regard to only one of the two breaches mentioned under Section 271(1)(c) of the Act for initiation of penalty proceedings will not warrant/ permit penalty being imposed for the other breach. This is more so, as an Assessee would respond to the ground on which the penalty has been initiated/ notice issued. It must, therefore, follow that the order imposing penalty has to be made only on the ground of which the penalty proceedings has been initiated, and it cannot be on a fresh ground of which the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Samson Perinchery (supra). Thus, on this count itself the penalty-imposed u/s 271(1)(c) of the Act is liable to be deleted. Therefore, respectfully following the judicial decisions stated hereinabove I hold that AO has to fasten the liability on a specific charge and initiating the penalty under one charge and levying the penalty under different charge is impermissible in law. The AO, in notice u/s.274, initiated the penalty for furnishing inaccurate particulars of income and ultimately levied the penalty, in penalty order u/s 271(1)(c), for concealment of income within the meaning of Explanation-1 to sec.271(1)(c) of the I.T. Act, 1961. Thus, the levy of penalty cannot be sustained and is hereby deleted. 7. There is also a force in arguments of Ld. AR that penalty u/s 271(1)(c) cannot be levied under dual charge and could be levied either for concealment of income or for furnishing inaccurate particulars of income; The provision of Sec.271(1)(c) is as under :- If the assessing officer or the Commissioner appeals or the principal commissioner or commissioner in the course of any proceedings under this Act, is satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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