TMI Blog2020 (2) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 AO simply relied on the Explanation 1 to s. 271(1)(c), though he levied the penalty for inaccurate particulars of income . Therefore, in our opinion, the basis of levy of penalty itself is not correct. As apparent from the provisions of s. 271(1)(c) that Explanation-1 of section 271(1)(c) is not applicable in case inaccurate particulars are furnished. Therefore, in our opinion, the basis of levy of penalty itself is not correct. Thus, we direct the assessing officer to delete the penalty. - Decided in favour of assessee. - ITA No. 7274/Mum/2018 - - - Dated:- 7-2-2020 - Shri Pawan Singh (JM) And Shri S Rifaur Rahman (A.M.) For the Appellant : Shri Kumar Kale- Advocate For the Respondent : Shri V Vinodkumar, Sr DR ORDER PER PAWAN SINGH, JM : 1. This appeal by assessee is directed against the order of CIT(A)-45, Mumbai dated 21-08-2018 for the assessment year 2014-15, which in turn, arises out of the penalty order levying penalty under section(u/s) 271(1)(c) of the I.T. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the outset of hearing, the Ld.AR 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 that the AO levied penalty without application of mind. There was neither any concealment of income nor assessee furnished inaccurate particulars of income. Admittedly, the assessee has not filed any appeal against the quantum assessment that does not automatically lead to levy of penalty. The penalty proceedings are separate and independent. Mere disallowance of claim in the assessment order would not automatically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @100% of tax sought to be evaded. The assessing officer levied penalty for furnishing inaccurate particular of Income. The action of assessing officer was affirmed by ld CIT(A). 7. The provisions of section 271(1)(c) of the Income-tax Act, is read as under : 271. Failure to furnish returns, comply with notices, concealment of income, etc. - (1) If the AO or the CIT(A) or the Principal CIT or CIT in the course of any proceedings under this Act, is satisfied that any person- (a)------ (b)------ (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, (d)------- he may direct that such person shall pay by way of penalty, - (i) --- (ii) --- (iii) in the cases referred to in cl. (c) or cl. (d), in addition to tax, if any, payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 that he has not concealed the particulars of income. It is apparent from the Explanation-1, this Explanation clearly states where in respect of any facts material to the computation of total income of any person such person fails to offer an explanation or offers explanation which is found by the AO to be false or such person offers an explanation which he is not able to substantiate or fails to prove that such explanation is bona fide and all the facts relating to the same and material to the computation of his total income have been disclosed by him. 11. We noted that the AO, failed to discharge his onus as he was 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 levyin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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