TMI Blog2020 (10) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... action during the course of assessment proceedings, there is no ambiguity. In the instant case, we find that in the show-cause notice, AO has not initiated the penalty on a specific charge and has talked about either concealment of income or furnishing of inaccurate particulars of income, however, while levying the penalty, AO has talked about both concealment of income and furnishing of inaccurate particulars of income. AO has not specified in the penalty order as to how it is a case of applicability of both the charges in the facts and circumstances of the present case. We therefore find that it is a case of lack of application of mind by the AO both at the time of initiation and final levy of penalty and the AO has failed to give a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icked which particular part of alleged offence, he was relying on. In facts, this confusion even continued while passing the impugned penalty order in as much as at Pg 2, where he used the words .करदाता ने जानबूझकर अपनी आय के स्पष्टत: सही पेश नहीं िकए है और अपनी आय का करारोपण से िछपाव िकया है ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te particulars of income are attracted as the assessee has concealed and not disclosed capital gains of sale of the land. Further, commission amounting to ₹ 25,000/- has been claimed in the return of income which has been disallowed by the Assessing Officer and thus, shows furnishing of inaccurate particulars of income. In support, the ld DR has relied on the High Court of Madras decision in case of Sundram Finance Ltd vs. ACIT, Channai reported in 93 Taxmann.com 250(Mad) and the Bombay High Court decision in case of CIT vs. Smt. Kaushalya others reported in 216 ITR 660(Bom). 4. We have heard the rival contentions and perused the material available on record. In the instance case, we find that the penalty proceedings have been in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.00 AM on 12.04.2016 and show cause why an order imposing a penalty on you should not be made under section 271(1) (c) of the Income tax Act, 1961. If you do not wish to avial your self of this opportunity of being heard in person or through your authorized representative you may show cause in writing on or before the said date which will be considered before any such order is made under section 271 (1) (c). 5. Thereafter, while passing the penalty order dated 19.09.2016, the AO has held that the assessee has deliberately not furnished correct particulars of income and has concealed his income and hence, liable for penalty u/s 271(1)(c) of the Act. 6. It is a settled legal proposition that concealment of income and furnishing of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd furnishing of inaccurate particulars of income. The AO has not specified in the penalty order as to how it is a case of applicability of both the charges in the facts and circumstances of the present case. We therefore find that it is a case of lack of application of mind by the Assessing officer both at the time of initiation and final levy of penalty and the AO has failed to give a decisive finding even at the time of passing the penalty order. It is a case where the assessee has not disclosed long term capital gains on sale of an immovable property, therefore, it is a case of concealment of income whereas the AO has held the same to be a case of concealment of income as well as furnishing of inaccurate particulars of income. In case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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