TMI Blog2021 (4) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of search proceedings it is compulsory to make the assessment in particular manner under the different provision of the sections of the Act. Similarly, the penalty is levied with respect to search proceedings under a different provisions. AO has levied the penalty under section 271(1)(C) of the Act by observing that the assessee has concealed/furnished inaccurate particular of income whereas there is no concept of concealment/furnishing inaccurate particular of income under the provisions of section 158BFA(2) of the Act as discussed above. In view of the above we hold that the penalty levied under section 271(1)(c) of the Act is not sustainable and accordingly we quash the same. Hence the ground of appeal of the assessee is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or before the final hearing of the appeal. 2.1 The assessee has also filed the additional ground of appeal vide letter dated 07-12-2015 which is reproduced as under: In law and in fact and in the circumstances of the appellant s case, the Ld.Deputy Commissioner of Income Tax Circle-9, Ahmedabad, has erred in levying penalty of ₹ 81,53,501/- by invoking the provision of section 271(1)(c) of the I.T Act, 1961, which is equal to the tax sought to be evaded @ 100 % while passing an order u/s.158BFA[2] r.w.s 158BFA[3] of the Act. Accordingly, the order levying penalty is invalid and void ab-initio and hence, deserves to be quashed. 3. The learned AR for the assessee, at the outset, submitted that the additional grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented from considering questions of law arising in assessment proceedings although not raised earlier. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner (Appeals) takes too narrow a view of the powers of the Tribunal. Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. In the instant case, therefore, the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0- 07-2004. The AO finally passed the order under section 271(1)(c) of the Act levying the penalty for ₹ 81,53,501/- vide order dated 03-03-2010 on account of concealment/furnishing inaccurate particular of income. In appeal, the learned CIT (A) was pleased to confirm the penalty levied by the AO. 6. Being aggrieved by the order of the learned CIT (A) the assessee is in appeal before us. 7. The learned AR before us filed a paper book running from pages 1 to 250 and contended that the penalty was initiated by issuing notice under section 158BFA(2) r.w.s. 158BFA(3) of the Act whereas the penalty was finally levied under section 271(1)(c) of the Act. As per the learned AR the assessment was framed under section 158BC on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: (2) The Assessing Officer or the Commissioner (Appeals) in the course of any proceedings under this Chapter, may direct that a person shall pay by way of penalty a sum which shall not be less than the amount of tax leviable but which shall not exceed three times the amount of tax so leviable in respect of the undisclosed income determined by the Assessing Officer under clause (c) of section 158BC 10.1 A plain reading of the above provision shows that it is applicable for the specified years in the case of search carried our u/s 132 of the Act, on or after first day of June 2007, but before the first day of July 2012. In case of search proceedings it is compulsory to make the assessment in particular manner under the different pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of bad debts. The case of the assessee is a fit case for levy a penalty u/s.271(1)(c) of the IT Act. I therefore, levy a penalty of ₹ 81,53,501/- which is equal to the tax sought to be evaded and in minimum penalty leviable as against maximum penalty leviable of ₹ 2,44,60,503/-. 10.3 It is also pertinent to note that the AO has levied the penalty under section 271(1) of the Act by observing that the assessee has concealed/furnished inaccurate particular of income whereas there is no concept of concealment/furnishing inaccurate particular of income under the provisions of section 158BFA(2) of the Act as discussed above. In view of the above we hold that the penalty levied under section 271(1)(c) of the Act is not sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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