TMI Blog2021 (8) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order and there was no justification given by the Assessing Officer for such a new amount for imposing penalty. The addition of unexplained jewellery was not an issue before the Assessing Officer. Thus, the appeal of the assessee is allowed. - I.T.A. No. 534/DEL/2018 - - - Dated:- 16-8-2021 - R.K. Panda, Member (A) And Suchitra Kamble, Member (J) For the Appellant : Rakesh Gupta, Adv. For the Respondents : Shiv Swaroop Singh, Sr. DR ORDER Per Suchitra Kamble, JM This appeal is filed by the assessee against the order dated 30/11/2017 passed by CIT(A)-3, Gurgaon, for assessment year 2004-05. 2. The grounds of appeal are as under:- 1. That having regard to the facts and circumstances of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inaccurate particulars. The penalty of ₹ 51,000/- was imposed in respect of addition of ₹ 1,41,750/- on account of unexplained jewellery. 4. Being aggrieved by the penalty order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. The Ld. AR submitted that the notice issued under 274 read with 271(1)(c) of the Act was not proper notice as the Assessing Officer has not specified the exact limb of Section 271(1)(c). The Ld. AR further submitted that in assessment order also the addition of unexplained jewellery was not an issue before the Assessing Officer and the penalty was initiated on the afterthought which is not justifiable under the law. The Ld. AR relied upon the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the proceedings and also the satisfaction about the nature of the default was arrived at in the assessment proceedings itself. Assessee was well aware about the penalty provisions which are to be used against him . The Ld. DR relied upon the decision of the Hon'ble Supreme Court of India in the case of Sundaram finance Ltd. [2018] 99 taxmann.com 152(SC). The Ld. DR further submitted that there are number of judicial decisions in the favour of the revenue where it is held that the non-striking.of one limb in penalty notice does not make it invalid. The Ld. AR submitted that initiation of penalty is based on satisfaction arrived at by the AO during assessment proceedings. For initiation of penalty, the Assessing Officer should be satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raise the technical matter in appellate proceedings after having participated in the penalty proceedings without raising the issue and raising the issue for the first time in appellate proceedings. This matter was examined by ITAT, Cochin Bench also in the case of Sinkaram Chettiar in its decision dated 02/08/2018 in I.T.A. Nos. 368-373/Coch/2017. The Tribunal examined various decisions including that of Hon'ble Karnataka High Court in the case of Manjunatha Cotton and Ginning Factory (2013) 359 ITR 565. The Ld. DR relied upon the decision of Chandulal (152 ITR 238), as well as the decision of the Tribunal in case of Shilov Sharma vs. ITO, W-I(4), Noida, A.Y. 2009-10 Date of order 31.07.2017. In this case the assessee relying upon the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in case of M/s. SSA' Emerald Meadow. The extract of the decision of the Hon'ble Karnataka High Court in M/s. SSA' Emerald Meadows are as under which was confirmed by the Hon'ble Apex Court: 3. The Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under Section 274 read with Section 271(1)(c) of the Income Tax Act, 1961 (for short 'the Act') to be bad in law as it did not specify which limb of Section 271(1)(c) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee, has relied on the ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o laid down by the Hon'ble High Court in case of M/s. Sahara India Life Insurance Company Ltd. (supra) will be applicable in the present case. The Hon'ble Delhi High Court held as under: 21. The Respondent had challenged the upholding of the penalty imposed under Section 271(1)(c) of the Act, which was accepted by the ITAT. It followed the decision of the Karnataka High Court in CIT v. Manjunatha Cotton Ginning Factory 359 ITR 565 (Kar) and observed that the notice issued by the AO would be bad in law if it did not specify which limb of Section 271(1)(c) the penalty proceedings had been initiated under i.e. whether for concealment of particulars of income or for furnishing of inaccurate particulars of income. The Karnataka Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
