9911796707
TMI Blog2020 (7) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 respectively arise out of the order by the ld. Commissioner of Income Tax (Appeals)-48, Mumbai in appeal Nos. CIT(A)-48/I.T-42,44 & 48/DC CC2(3)/2017-18, CIT(A)-48/I.T-43,45,46 & 47/DC CC2(3)/2017-18 dated 14/06/2018, 31/05/2018 (ld. CIT(A) in short) in the matter of imposition of penalty u/s.271(1)(c) r.w.s. 274 & 271(1)(c) respectively of the Income Tax Act, 1961. Also include the details of Asst Year 2007-08. 2. At the outset, the ld. AR submitted that the only effective issue involved in all these appeals is as to whether the ld. CIT(A) was justified in confirming the levy of penalty u/s.271(1)(c) of the Act in the facts and circumstances of the case. He also submitted that A.Y.2001-02 being the first year in search assessment be tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he return filed u/s.153A of the Act and the payment of taxes thereon were duly complied with by the assessee in the instant case. Hence, the case of the assessee falls within the Explanation-5, Clause-2 of Section 271(1)(c) of the Act wherein immunity from levy of penalty is squarely provided in the statute itself. We find that the ld. AO had levied the penalty as under for various assessment years:- ITA No. AY On Income declared in return u/s.153A as Gross Profit on Dairy Business On additions made by the Assessing Officer on transaction of Shares Total 4619 2001-02 311,899 167,407 479,306 4620 2002-03 320,484 NA 320,484 4621 2003-04 331,193 16,322 347,515 4622 2004-05 304,040 NA 304,040 4623 2005-06 310,361 NA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome or concealment of income. (c) Addition made towards agricultural income treating the same as bogus of Rs. 1,00,000/- - penalty initiated for inaccurate particulars of income or concealment of income. 3.4. Out of the aforesaid three additions, this Tribunal in the quantum appeal proceedings, had sustained addition towards bogus long term capital gain to the extent of Rs. 4,84,965/- and addition towards unexplained cash expenditure to the tune of Rs. 24,248/-. 3.5. We find that the ld. AO had levied penalty for the A.Y.2001-02 by applying the Explanation-5 to Section 271(1)(c) of the Act for the following three sums. (a) Undisclosed dairy sales found during the course of search reflected in the return filed u/s.153A of the Act - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round, the issue before us requires to be adjudicated. 4. It could be seen that originally in the assessment order, the ld. AO vide para 7.2 and para 7.3 page 8 had recorded his satisfaction that penalty proceedings are being initiated separately u/s.271(1)(c) of the Act for furnishing inaccurate particulars of income or concealment of income in respect of one addition and in respect of another addition penalty proceedings were initiated for concealment of income. But in the final penalty order vide para 8 thereon, he had recorded his satisfaction that penalty is leviable for furnishing inaccurate particulars of income. But again in para 12 of the same penalty order, the ld. AO states that penalty is levied for both concealment of income a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mention the specific charge of offence committed by the assessee, if the ld. AO has duly recorded his satisfaction in the quantum assessment order itself, the assessee is completely made aware of the offence committed by him and also the mind of the ld. AO. Subsequently, if the penalty is levied by the ld. AO on the very same limb for which satisfaction was recorded in the quantum assessment order, then the penalty levied would be sustainable in the eyes of law and cannot be struck down merely because there is a defect in the penalty notice. In other words, the Hon'ble Bombay High Court had observed that in the case of Ventura Textiles, the assessee was duly informed about the specific limb on which penalty is initiated by way of proper sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 17,39,035/- is deleted. (b) In respect of penalty on additions made during the course of assessments framed u/s.153A of the Act for three assessment years i.e. A.Yrs 2001-02, 2003-04 and 2007-08, we hold that the same is deleted for recording improper satisfaction on the part of the ld. AO by not mentioning the specific offence committed by the assessee in the quantum assessment order and also for initiating penalty on one limb and levying penalty on the other limb of the alleged offence. By this, the penalty levied for three assessment years in the sum of Rs. 3,03,339/- is deleted. 5.2. Accordingly, the grounds raised for all the assessment years are allowed. 6. In the result, all the appeals of the assessee are allowed. Order pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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