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TMI Blog2019 (12) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... referred as to "the Act") for the Assessment Year (A.Y.) 2012-13. 2. The case of the assessee was reopened on 07.10.2013 by issuing notice under section 148 of the Act after recording reason which ultimately finalized under section 143(3) r.w.s. 147 of the Act by determining total income at Rs. 4,36,848/- at 8% of the gross receipt of Rs. 54,60,596/- in terms of the provision of Sec. 44AD of the Act on 20.03.2015. Consequently, penalty proceeding was initiated under section 271(1)(c) of the Act and the show-cause notice dated 27.08.2015 was issued by the ITO ward-2(1)(3), Rajkot for concealment of particulars of income or furnishing of inaccurate particulars of income by the assessee. Such penalty proceeding was finalized by the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply his mind and it should be definite as to whether he has proceeded and finalized on the basis that the tax payer has concealed his income or he had furnished inaccurate particulars of income in default the penalty be quashed. The Learned AR also relied upon the judgment passed by the Gujarat High Court in the case of CIT-vs-Jyoti Ltd. reported in [2013] 34 taxmann.com 65 (Gujarat) and also relied upon the order passed by the Hon'ble Tribunal, Ahmedabad Benches in the case of Dharmesh Dhulabhai Prajapati-vs-ITO in ITA No.1570/Ahd/2017 for A.Y. 2011-12 and also the case of Smt. Ushaben Atulbhai Shah in ITA No.197/Ahd/2017 for A.Y 2012-13. The Learned CIT(A) while confirming the order levying penalty alleged on account of both counts ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted during the course of scrutiny Assessment. If the case was ot selected for scrutiny than the offence/default would have not been detected. The assessee has committed default within the meaning of penalty u/s. 271(1)(c) of the Income-tax Act, has concealed the particulars of his income or furnished inaccurate particulars of such income. Hence, I am satisfied that the assessee has committed default within the meaning of section 271(1)(c) of the Income-tax Act and accordingly, penalty is levied on the part of the income. I levy penalty of Rs. 1,34,987/- being 100% of tax sought to be evaded as against the maximum 300% leviable of Rs. 4,04,961/-." 6. Further this particular aspect of the matter is neither been considered even at the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 the assessee had concealed its income and/or that it had furnished inaccurate particulars of such income." It was in this respect the Bench ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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