9911796707
TMI Blog2020 (7) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the same has imposed the Penalty u/s 271(1)(c) of the I.T. Act. 4. That, the findings of the CIT (A) are not justified and are bad-in-law. The appellant craves to add, alter, amend or delete any of the above grounds of appeal. 3. The only effective issue raised by the assessee is that the learned CIT (A) erred in confirming the penalty imposed by the AO under section 271(1)(c) of the Act for Rs. 63,460/- only. 4. The facts in brief are that the assessee in the present case is an individual and drawing his income under the head salary and other sources. The assessee in the year under consideration has made deposits in cash amounting to Rs. 51,85,699/- which was not disclosed in the income tax return. On question by the AO assessee submitted that the impugned deposits represents the business receipts. As per the assessee, he was engaged in the business activity of trading for all types of bras part item, stove parts, hardware items. The assessee also claimed that he has not maintained any books of accounts for such business transactions. Accordingly he offered the income of Rs. 4,14,856/- being 8% of Rs. 51,85,699/- under section 44 AD of the Act. Accordingly the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings when the inquiry regarding cash deposit was conducted by the AO. Thus even if the profit is disclosed by the appellant on estimation basis u/s. 44AD of the Act, then also provisions of section 271(1)(c) of the Act are applicable to his case as there was no true and correct discloser of the income earned out of business activities in the return of income. Thus the explanation one below sub section 1 of section 271(1)(c) of the Act is applicable to the case of the appellant. In view of these facts, it is held that the A.O. has correctly levied the penalty u/s. 271(1)(c) of the Act on the amount of Rs. 4,14.856/- and the same is hereby confirmed. Thus, the ground of appeal of the appellant is dismissed. 7. Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us. 8. The learned AR before us filed a paper book running from pages 1 to 5 and submitted that the assessee has paid the taxes during the assessment proceedings and before passing the assessment order by the AO. Accordingly he claimed that the assessee has not concealed particulars of income deliberately and therefore there cannot be any penalty under section 271(1)(c) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Thus it is transpired that there was no deliberate act on the part of the assessee not to disclose the business receipts in his income tax return. In holding so we draw support and guidance from the judgment of Hon'ble Gujarat High Court in the case of ITO Vs. Bombay wala readymade stores reported in 55 taxmann.com 258 wherein it was held as under: "6. The penalties were upheld as it was only estimated value on which estimates of income tax was made and the books of accounts were rejected. There was no scope to levy the penalty under Section 271(1)(c), the appellant had been assessed by the Income Tax. The Tribunal has very rightly considered that both the additions are on a estimated basis. Therefore, just because estimates are made, penalty cannot be levied under Section 271(c)." 12. The Revenue has also not brought any material suggesting that the assessee deliberately furnished the inaccurate particulars of income. 13. In our considered view any addition/disallowances made during the quantum proceedings does not automatically justify the levy of the penalty under section 271(1)(c) of the Act. Besides the element of income added the quantum proceedings, there must be some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted situation, causing disruption in the functioning of judicial machinery, that Hon'ble Supreme Court of India, in an unprecedented order in the history of India and vide order dated 6.5.2020 read with order dated 23.3.2020, extended the limitation to exclude not only this lockdown period but also a few more days prior to, and after, the lockdown by observing that "In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown". Hon'ble Bombay High Court, in an order dated 15th April 2020, has, besides extending the validity of all interim orders, has also observed that, "It is also clarified that while calculating time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly", and also observed that "arrangement continued by an order dated 26th March 2020 till 30th April 2020 shall continue further till 15th June 2020". It has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words "ordinarily", in the light of the above analysis of the legal position, the period during which lockout was in force is to excluded for the purpose of time limits set out in rule 34(5) of the Appellate Tribunal Rules, 1963. Viewed thus, the exception, to 90-day time-limit for pronouncement of orders, inherent in rule 34(5)(c), with respect to the pronouncement of orders within ninety days, clearly comes into play in the present case. Of course, there is no, and there cannot be any, bar on the discretion of the benches to refix the matters for clarifications because of considerable time lag between the point of time when the hearing is concluded and the point of time when the order thereon is being finalized, but then, in our considered view, no such exercise was required to be carried out on the facts of this case. 11. To sum up, the appeal of the assessee is allowed, and appeal of the Assessing Officer is dismissed. Order pronounced under rule 34(4) of the Income Tax (Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
