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TMI Blog2021 (6) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 98,004/- u/s. 271(1)(c) of the Act. 3. The brief fact is that assessment u/s. 143(3) of the Act was finalized on 11th Nov, 2014. Vide the aforesaid assessment, the Assessing Officer noticed that assessee has shown Rs. 7,30,000/- as short term capital gain on sale of asset and wrongly claimed long term capital gain of Rs. 7,30,000/- under section 54F of the Act. Considering the claim of the assessee as wrongly claimed, the Assessing Officer added the aforesaid amount to the total income. On appeal, ld. CIT(A) has confirmed this addition. Thereafter, the Assessing Officer vide order u/s. 271(1)(c) dated 23rd March, 2017 has levied minimum penalty to the amount of Rs. 98,040/-. The ld. CIT(A) has sustained the penalty levied by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has not furnished inaccurate particulars of income but the assessee claimed the short term capital gain against the purchase of new residence bonafidely. The ld. counsel has also submitted that assessee has filed the true particulars of income in the Profit and Loss Account and in the balance sheet. However, on mere disallowance of claim made by the assessee in the return of income, it cannot be said that the assessee has concealed the particulars of income. In this regard, the ld. counsel has placed reliance on the decision of Hon'ble Supreme Court in the case of CIT vs. Reliance Petro-Chemical P. Ltd. 230 CTR 320, 322 ITR 158. On the other hand, the ld. Departmental Representative has supported the order of CIT(A). 5. Heard both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Gujarat in the case of Sunita Transport as supra. In para 7 of the penalty order u/s. 271(1)(c), the Assessing Officer held that it is found to be a fit case to levy penalty u/s. 271(1)(c) of the I.T. Act, 1961, for furnishing of inaccurate particulars and concealment of income to the extent of Rs. 7,30,000/- which indicate that Assessing Officer has not recorded specific finding in respect of reason for imposing penalty in the final penalty order. The Hon'ble Jurisdictional High court in the case of Sunita Transport Pvt. Ltd. vs. ACIT reported in 42 taxmann. con 54 observed that language and/or may be proper in issuing a notice but that penalty cannot be imposed without mentioning the specific charges in the final penalty order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , penalty cannot be levied. It was a case in which in final conclusion the authority had recorded that "1 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 respect the Bench observed that "Now the language of "and/or" may be proper in issuing a notice as to penalty order or framing of charge in a criminal case or a quasicriminal case, but it was incumbent upon the IAC 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 the assessee. No such clear cut finding was reached by the IAC and, on that ground alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding imposition of penalty, the Id.AO has to record a conclusive finding for which he is imposing the penalty, i.e. whether he is imposing penalty for furnishing inaccurate particulars of income or for concealment of income. The Id.AO cannot use phrase that "penalty is being imposed for furnishing inaccurate particulars/concealment of income". This phraseology does not disclose the formation of opinion at the end of the Assessing Officer, and such penalty order is not sustainable." We have also considered the similar decision of ITAT Ahmedabad in the case of Sh. Hasmukh Jayantilal Thakkar vs. ITO vide ITA No. 32/Ahd/2017 wherein penalty was deleted following the decision of Hon'ble High Court of Gujarat in the case of Sunita Transport be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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