TMI Blog2021 (6) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ₹ 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. As considered the similar decision of ITAT Ahmedabad in the case of Sh. Hasmukh Jayantilal Thakkar [ 2018 (6) TMI 30 - ITAT AHMEDABAD] wherein penalty was deleted following the decision of Sunita Transport because of not mentioning specific charges in the penalty order. In the light of the above facts and findings we observe that the Assessing Officer has not mentioned the specific charge in penalty order whether it was levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer vide order u/s. 271(1)(c) dated 23rd March, 2017 has levied minimum penalty to the amount of ₹ 98,040/-. The ld. CIT(A) has sustained the penalty levied by the Assessing Officer. 4. During the course of appellate proceedings before us, the ld. counsel for the assessee at the very outset submitted that the Assessing Officer has not recorded a firm conclusion in the penalty order whether it is being imposed for furnishing inaccurate particulars of income or concealment of income. The ld. Assessing Officer has used both the expression in the penalty order hence order is not sustainable. The ld. counsel relied upon the judgment of Hon ble Gujarat High Court in the case of Sunita Transport Pvt. Ltd. Vs. ACIT, 42 taxmann.c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the sides and perused the material on record. During the course of assessment, the Assessing Officer noticed that assessee has shown ₹ 7,30,000/- as short term capital gain on sale of asset and claimed exemption u/s. 54F as investment in JBR flats. The Assessing Officer held that exemption u/s. 54F is not allowable against short term capital gain therefore claim of deduction was disallowed and amount of ₹ 7,30,000/- was added to the total income of the assessee. During the course of penalty proceedings u/s. 271(1)(c) of the Act, the assessee e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT 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. The relevant extract of the order is reproduced as under:- 5. We have duly considered rival contentions and gone through the record carefully. Hon'ble Gujarat High Court has considered this aspect in the case of Snita Transport (supra). Reference to para 9 of this judgment is worth to note. It reads as under: 9. Regarding the contention that the Assessing Officer was ambivalent regarding under which head the penalty was being imposed namely for concealing the particulars of income or furnishing inaccurate particulars, we may rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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 alone, the order of penalty passed by the IAC was liable to be struck down. On identical issue and facts ITAT Surat in the case of Sharat Bachubhai Vyas Vs. DCIT vide IT(SS)A No. 349/Ahd/2014 dated 16.11.2018 held that while passing final order the Assessing Officer has to record a specific finding accepting the fact that penalty is being imposed for furnishing inaccurate particulars or concealment of income. The ITAT Ahmedabad in the case of Divyesh Chhaganlal Patel Vs. ITO vide ITA No. 3196/Ahd/2016 dated 31-11-2019 after following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 because of not mentioning specific charges in the penalty order. In the light of the above facts and findings we observe that the Assessing Officer has not mentioned the specific charge in penalty order whether it was levied for concealment of income or for furnishing inaccurate particulars of income. Therefore, the principles laid down by the Hon ble High Court as supra are squarely applicable to the facts of this case and such penalty order is not sustainable. Accordingly, this ground of appeal of the assessee is allowed. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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