TMI Blog2020 (1) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... The penalty order does not clearly specify under which limb of section 271(1)(c) of the Act, the penalty was levied. So also, the impugned order by the Ld. CIT(A) also not clear on that aspect. For these reasons, viewing from any angle, we are of the considered opinion that penalty cannot be sustained and the same is liable to be deleted. We accordingly direct for its deletion. - Decided in favour of assessee. - I.T.A. No. 1047/Del/2015 - - - Dated:- 20-1-2020 - Shri Prashant Maharishi, Accountant Member And Shri K. Narasimha Chary, Judicial Member For the Assessee : None For the Department : Shri Jagdish Singh, Sr. DR ORDER PER K. NARASIMHA CHARY, JM Challenging the order dated 03/12/2014 in appeal No. 183/13- 14/MZR passed by the learned Commissioner of Income Tax (Appeals)- Muzaffarnagar ( Ld. CIT(A) ), for assessment year 2010-11, Doon Valley Roller Flour Mills Ltd. ( the assessee ), preferred this appeal. 2. Brief facts of the case are that, for the assessment year 2010-11, the assessee filed the return of income on 13/10/2010 declaring income of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f concealing the income and thereby furnishing the inaccurate particulars thereof. He, therefore, by order dated 24/9/2013 levied penalty of ₹ 9,96,000/-for furnishing inaccurate particulars of its income and also concealing the particulars of income. 5. Aggrieved by the levy of penalty, assessee preferred appeal before the Ld. CIT(A) and submitted that during the year, the assessee sold all the fixed assets in lump sum sale for ₹ 1.2 crores and offered the same to tax under the head capital gain under section 50B of the Act as per the certificate in form No. 3CEA issued by the auditor and enclosed the same to the return of income but when the Assessing Officer issued show cause notice, to avoid the unwanted litigation with the Department, assessee gave up its claim of slump sale and filed the revised computation of income as per the provisions of section 50C of the Act, which was considered by the learned Assessing Officer to complete the assessment. Assessee placed reliance on the decision of the Hon ble Apex Court in the case of CIT vs. Reliance Petro Products Private Limited (2010) 322 ITR 158 and also in the case of Price Waterhouse Coopers Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. If for any reason, the assessee is not available there, it is for the assessee to make arrangements for service of such notice by furnishing the address where the assessee would be available, or to deliver it to some authorised person, or by making request to the postal department to detain the mail till the assessee claims the same. Since the assessee does not seem to have adopted any of these methods, we are the considered opinion that no time could be granted. Basing on the record we shall proceed to hear the counsel for Revenue and decide the matter on merits. 8. Ld. DR placed reliance on the orders of the authorities below and submitted that the assessee revised the return of income only after the Department detected the concealment of income and therefore the authorities are justified in levying the penalty. According to him the concealment of income amounts to the furnishing of inaccurate particulars also. 9. We have gone through the record in the light of the submissions made by the Ld. DR. It could be seen from the record that from the beginning the assessee maintained that they sold all their fixed assets including land, building, Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual concealment has been made or inaccurate particulars on facts were provided in the computation. Law does not bar or prohibit a person from making a claim, when he knows the matter is going to be examined by the Assessing Officer. 12. In CIT vs Reliance Petroproducts Pvt Ltd [2010] 322 ITR 158 Hon ble Apex Courtheld that when the assessee preferred a claim, it was up to the authorities to accept its claim in the Return or not, but merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not attract the penalty under Section 271(1 )(c). It was further held that if the contention of the Revenue is accepted, then in case of every Return where the claim made is not accepted by Assessing Officer for any reason, the assessee will invite penalty under Section 271(1)(c) and that is clearly not the intendment of the Legislature. 13. Further, in the grounds of appeal the assessee questioned as to under which limb of section 271(1)( c ) of the Act the penalty was levied, whether it was for concealment of income or furnishing of inaccurate particulars thereof. On this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether, omission if assessing officer to explicitly mention that penalty proceedings are being initiated for furnishing of inaccurate particulars or that for concealment of income makes the penalty order liable for cancellation even when it has been proved beyond reasonable doubt that the assessee had concealed income in the facts and circumstances of the case? And the Hon be High Court answered the same in favour of the assessee observing that: The Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under Section 274 read with Section 271(1)(c) of the Income Tax Act, 1961 (for short the Act ) to be bad in law as it did not specify which limb of Section 271(1)(c) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee, has relied on the decision of the Division Bench of this Court rendered in the case of Commissioner of Income Tax -Vs- Manjunatha Cotton and Ginning Factory (2013) 359 ITR 565. In our view, since the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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