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TMI Blog2020 (2) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Income Tax (Appeals)-45, Mumbai ["Ld. CIT(A)"] u/s 250 of the Income-tax Act, 1961 ("Act"), your appellant prefers this appeal, among others, on the following grounds of appeal, each of which is without prejudice to, and independent of, the other: 1. Levy of Penalty u/s. 271(1)(c): Rs. 6.62.230/- a. On the facts and in the circumstances of the case, and in law, the Ld. CIT(A) erred in not appreciating that the show cause notice u/s. 274 r. w. s. 271(l)(c) of the Act dated 30.12.2016 issued by the Ld. AO was bad in law, having been issued without specifying the precise charge for imposition of penalty. b. On the facts and in the circumstances of the case, and in law, the Ld. CIT(A) erred in not appreciating that the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R of the assessee submits that similar penalty was levied by AO in case of assessee's and was confirmed by Ld. CIT(A) vide order dated 21-08-2017, i.e. on the same day, however, on further appeal, the Tribunal deleted the penalty in ITA No.7273/Mum/2018 dated 20-02-2018. The Ld.AR further submits that while passing the assessment order, the AO initiated penalty for concealment of income and for furnishing inaccurate particulars of income. However, while levying the penalty, the AO discussed all ingredients of Explanation 1 to section 271(1)(c) of the Act, which relates to concealment the income. However, while levying the penalty, the AO levied the penalty for furnishing inaccurate particulars of income. The Ld.AR of the assessee submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake which has been duly considered and explained by Ld.CIT(A) in the impugned order. The Ld. DR submits that assessee is not entitled for any relief. 6. We have considered the submission of both the parties and have gone through the orders of authorities below. We have also gone through the case law as have been relied on before us. During the assessment the assessing officer treated the long term capital gain (LTCG) and bogus made addition under section 68 as unexplained cash credit. The AO also made addition of Rs. 77,183/- on account of commission for converting the unaccounted money in LTCG. No further appeal was filed by the assessee. The assessing officer served notice under section 271(1)(c) rws 274 dated 301.12.2016. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars of his income or fringe benefits or the furnishing of inaccurate particulars of such income or fringe benefits. ** ** ** Explanation 1. - Where in respect of any facts material to the computation of the total income of any person under this Act, - (A) such person fails to offer an explanation or offers an explanation which is found by the AO or the CIT(A) or the Principal CIT or CIT to be false, or (B) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then, the amount added or disallowed in computing the total income of such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limbs of section 271(1)(c) without specifying , if the assessee has concealed the particulars of income. The penalty ultimately was levied on the assessee for concealing the income by observing that the case of the assessee is covered by the Explanation 1 to section 271(1)(c). However, the ld CIT(A) while affirming the action of assessing officer took the view that the assessee furnished inaccurate particulars of income. 10. We are of the view that in the case of furnishing inaccurate particulars of income, the onus is on the Revenue to, prove that the assessee had furnished the inaccurate particulars, while in the case of concealment of particulars of income, where the Explanation . 1 is applicable; the onus is on the assessee to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted that Indore bench of Tribunal in DCIT Vs Nepa Ltd (supra) also took the view that where Assessing Officer levied penalty on assessee for furnishing inaccurate particulars of income by invoking Explanation 1 to section 271(1)(c), same could not be sustained as Explanation 1 is applicable in respect of particulars which have been concealed and not for furnishing inaccurate particulars of income. In view of the aforesaid discussion, in our opinion the assessing officer failed to discharge his onus being not sure at the initiation of penalty under section 271(1)(c) for which specific charge of penalty has been initiated by the AO. Even while levying the penalty also, the assessing officer simply relied on the Explanation to section 271(1)( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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