TMI Blog2022 (1) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... t be imposed without mentioning the specific charge. AO has not mentioned the specific charge in his penalty orders whether it was levied for concealment of income or for furnishing inaccurate particulars of income. Therefore, in our considered view, the penalty levied by the AO and confirmed by the learned CIT (A) is not sustainable. Hence, the ground of appeal of the assessee is allowed. - ITA No. 1306/AHD/2019 - - - Dated:- 15-12-2021 - Shri Rajpal Yadav, Vice President And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri Tushar Hemani, Sr. Advocate with Shri Parimalsinh B. Parmar For the Revenue : Shri R.R. Makwana, Sr.D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and they further erred in grossly ignoring various submissions, explanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order. This action of the lower authorities is in clear breach of law and Principles of Natural Justice and therefore deserves to be quashed. 7. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal. 3. The only issue raised by the assessee is that the learned CIT (A) erred in confirming the penalty levied by the AO for ₹ 1,00,345/- under the provisions of section 271(1)(c) of the Act. 4. The facts in br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the amount of ₹ 6,84,617/- and levied the penalty of ₹ 1,00,345/-representing 100% of the amount of tax sought to be evaded. 5. Aggrieved, assessee preferred an appeal to learned CIT (A) who confirmed the order of the AO by observing as under: The appellant claims that particulars were in the return of income but the return was filed only after a notice u/s.148 was issued. The appellant has relied on a few cases but ratio in those cases is not applicable. This is not inadvertent mistake or a silly mistake. The appellant in this case has not come out clearly with important facts till the filing return of income as per provisions u/s. 139(1) so as to show the lack of mens rea. I feel the mistake claimed by appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticulars of income, ..... . Therefore, courts have consistently held that there need to be findings of A.O. if the penalty order is to be confirmed. In instant case, there is specific finding by the A.O. In a recent judgment dated 31.10.2013 in the case of Mak Data Pvt. Ltd. Vs. CIT, 38 Taxmann Com 448 (SC), the Hon'ble Supreme Court has ruled, voluntary disclosure does not absolve assessee, bonafide explanation of income required . The facts of the case also make it amenable to the judgment against it in the case of K.P. Madhusudhanan Vs. CIT 251 ITR 99 (SC). Further, as per judgments, additional income in response to notice u/s.148, penalty on additional income confirmed in the case laws: PC Joseph Bros. Vs. CIT 243 ITR 818 (K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us. 7. Learned AR before us submitted that the AO has levied the penalty u/s 271(1)(c) of the Act without mentioning any specific charge. As such the AO in Para No.4 of the penalty order while calculating the penalty has drawn its conclusion by levying both the charges i.e. furnished inaccurate particulars of income and thereby concealed particulars of income. Accordingly, the learned AR prayed that penalty without mentioning the specific charge cannot be levied upon the assessee. 8. On the other hand, learned DR before us submitted that the assessee cannot be absolved from the penalty even the AO has specified both the charges in his penalty order. The learned DR vehemently supported the order of Authorities below. 9. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus insofar as final order of penalty was concerned, the Assessing Officer was clear and penalty was imposed for concealing particulars of income. In light of this, we may peruse the decision of 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 authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
