TMI Blog2021 (6) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... being satisfied on the charge on which the penalty was proposed to be levied - penalty has been levied in a mechanical manner without application of mind. In our view, this is a serious mistake in the penalty order which is incurable at this stage and the penalty order passed by the AO is an invalid order and therefore can not be sustained. D.R. request that the penalty may be restored to the file of the Ld. CIT(A) can not be accepted at this stage as it will not serve any useful purpose by restoring the appeal to the file of the Ld. CIT(A). This is so because by restoring the penalty to the file of the Ld. CIT(A), the appellate authority can not cure the defect/mistake which has been committed by the AO in the penalty order passed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After taking into account the reply of the assessee filed in response to penalty notice issued under section 271(1)(c) of the Act, the AO levied a penalty of ₹ 9,35,24,310/- being 100% of the tax sought to be evaded by the assessee vide order dated 28.03.2011 passed under section 271(1)(c) of the Act. 4. Aggrieved by the order of AO, the assessee preferred an appeal before the Ld. CIT(A) challenging the order passed under section 271(1)(c) of the Act, however, the Ld. CIT(A) also dismissed the appeal of the assessee by observing that AO has rightly imposed the penalty as the assessee has mobilized the unaccounted money by creating various layers of transactions of which the assessee was an ultimate beneficiary and hence dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the same is not relevant at this stage as the quantum appeal has been restored by the Tribunal to the file of the Ld. CIT(A) to decide the issue afresh. The Ld. D.R., therefore, submitted that the penalty issue may also be restored to the file of the Ld. CIT(A) to decide it afresh. 6. We have heard the rival submissions of the parties and perused the material on record including the penalty order passed under section 271(1)(c) of the Act as well as the appellate order. We note that in this case, while passing the penalty order, the AO has not discussed or mentioned the charge on which the penalty was levied. The relevant paras are as under: 5. I have carefully examined the assessee's contention. The opportunities given to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naccounted money into its account in the guise of application money to finance the repayment of its dues to Madhavpura Mercantile Go-op Bank Ltd, Hence it is a fit case to impose penalty u/s 271(1)(c). 7. The penalty imposable is as under: Income / Loss sought to be evaded (Wrong claim of loss) ₹ 27,78,50,000 Tax sought to be evaded (Inclusive of SC @ 10% EC @ 2% ₹ 9,35,24,310/- Minimum Penalty leviable 100% ₹ 9,35,24,310/- Maximum penalty leviable -300% ₹ 28,05,72,930/- 6.1 However, after considering the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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