TMI Blog2020 (1) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... he addition may fall under any of the two limbs. We notice that the assessee has fully disclosed all the particulars relating to waiver benefits in its return of income. Hence it cannot certainly a case of furnishing of inaccurate particulars of income at all. All these factors would show that the AO was not clear as to charge for which he has initiated penalty proceedings. In any case, we have noticed that the AO has also not struck off inapplicable limb in the penalty notice, which further fortifies the case that the assessing officer has not applied his mind. Hence, as per the decision rendered by Hon ble Karnataka High Court in the case of Manjunatha Cotton Ginning Factory [ 2013 (7) TMI 620 - KARNATAKA HIGH COURT] the penalty order is liable to be quashed. - ITA No.2438/Bang/2018 - - - Dated:- 8-1-2020 - Shri B.R Baskaran, Accountant Member And Shri Pavan Kumar Gadale, Judicial Member For the Appellant : Shri T Srinivasa, C.A For the Respondent : Shri Karuppusamy, Addl. CIT (DR) ORDER PER B.R BASKARAN, ACCOUNTANT MEMBER : The appeal filed by the assessee is directed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is credited in Profit and Loss account. Accordingly he submitted that the issue is debatable one and hence AO was not justified in levying penalty u/s 271(1)(c) of the Act. 5. We heard Ld D.R and perused the record. The penalty u/s 271(1)(c) of the Act is levied either of the two limbs, viz., for concealment of particulars of income or furnishing of inaccurate particulars of income. We notice that the assessing officer has not mentioned the nature of charge in the assessment order and has only stated that Penalty proceedings u/s 271(1)(c) is initiated separately . In the penalty notice also, the AO has not struck off inapplicable charge/limb. Hence it appears that he was not clear about the reason for which the penalty proceedings have been initiated. The following observations made by the AO in the penalty order would show that the AO was not clear in his mind about the charge under which he has imposed the penalty:- .....By claiming incorrect deduction and by filing wrong particulars, the assessee has concealed its taxable income and thereby evaded payment of taxes due to the Revenue. Hence it is held that the case clearly falls under the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to the income were not disclosed by him. Thus, apart from his explanation being not bona fide, it should be found as of fact that he has not disclosed all the facts which was material to the computation of his income. 17. The explanation having regard to the decision of this Court must be preceded by a finding as to how and as to in what manner he furnished the particulars of his income. It is beyond any doubt or dispute that for the said purpose the Income Tax Officer must arrive at its satisfaction in this behalf. [See Commissioner of Income Tax v. Ram Commercial Enterprises Ltd., 246 ITR 568 and Diwan Enterprises v. Commissioner of Income Tax, 246 ITR 571]. 18. The order imposing penalty is quasi-criminal in nature and, thus, burden lies on the department to establish that the assessee had concealed his income. Since burden of proof in penalty proceedings varies from that in the assessment proceeding, a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted, though a finding in the assessment proceeding constitute good evidence in the penalty proceeding. In the penalty proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculars of such income'. It is implicit in the word 'concealed' that there has been a deliberate act on the part of the assessee. The meaning of the word 'concealment' as found in Shorter Oxfort English Dictionary, third edition, Volume I, is as follows : 'In law, the intentional suppression of truth or fact known, to the injury or prejudice of another.' The word 'concealment' inherently carried with it the element of mens rea. Therefore, the mere fact that some figure or some particulars have been disclosed by itself, even if it takes out the case from the purview of non-disclosure, it cannot by itself, even if it takes out the case from the purview of nondisclosure, it cannot by itself take out the case from the purview of nondisclosure, it cannot by itself take out the case from the purview of furnishing inaccurate particulars. Mere omission from the return of an item of receipt does neither amount to concealment nor deliberate furnishing of inaccurate particulars of income unless and until there is some evidence to show or some circumstances found from which it can be gathered that the omission was attributable to an intention or desire on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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