TMI Blog2018 (11) TMI 1853X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, this order is not sustainable in view of decision of SNITA TRANSPORT (P.) LTD. VERSUS. ASSISTANT COMMISSIONER OF INCOME-TAX [ 2012 (12) TMI 981 - HIGH COURT OF GUJARAT] . In view of the above discussion, penalty is not sustainable. We allow ground of appeal, and cancel penalty imposed by the AO. - Decided in favour of assessee. - IT(SS)A.No.349/Ahd/2014 - - - Dated:- 16-11-2018 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER For the Assessee : Shri Pritesh Shah, CA For the Revenue : Smt.Smita Nair, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: Assessee is in appeal before the Tribunal against order of the ld.CIT(A)-II, Ahmedabad dated 28.7.2014 passed for the Assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d both the expression in the penalty order, hence, order is not sustainable. The ld.counsel for the assessee relied upon the judgement of Hon ble Gujarat High Court in the case of Snita Transport P.Ltd. Vs. ACIT, 42 taxmann.com 54 and contended that while imposing penalty, the ld.AO has to record a categorical finding whether such penalty is being imposed for concealment of income or furnishing of inaccurate particulars of income. He emphasised that though in the show cause notice, the AO may use language of and/or in between concealment of income or furnishing of inaccurate particulars, but while passing final order, he has to record a categorical satisfaction whether such penalty is being imposed for concealment of income or furnishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in case of Manu Engineering Works (supra). In the said decision, the Division Bench came to the conclusion that language of and/or may be proper in issuing a notice for penalty, but it was incumbent upon the Assessing Authority to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by them. If no such clear cut finding is reached by the authority, penalty cannot be levied. It was a case in which in final conclusion the authority had recorded that I am of the opinion that it will have to be said that the assessee had concealed its income and/or that it had furnished inaccurate particulars of such income. It was in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inaccurate particulars of its without any reasonable cause and therefore liable for levy of penalty u/s.271(1)(c) of the Income Tax Act, 1961. 7. A perusal of the above finding would indicate that, he wished to impose penalty for furnishing inaccurate particulars of income and furnishing of inaccurate particulars of income. Both these situations contradictory to each other in the above order. Therefore, this order is not sustainable in view of decision of Hon ble Gujarat High Court cited supra. In view of the above discussion, penalty is not sustainable. We allow ground of appeal, and cancel penalty imposed by the AO. 8. In the result, appeal of the assessee is allowed. Order pronounced in the Court on 16th November, 2018 at Sura ..... X X X X Extracts X X X X X X X X Extracts X X X X
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