TMI Blog2022 (7) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee, pertaining to the Assessment Year (AY) 2012-13, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-4, Ahmedabad [in short the ld. CIT(A) ]in Appeal No. CIT(A)-4/10014/2018-19 dated 16.05.2019 which in turn arises out of a penalty order passed by Assessing Officer under section 271(1)(c) of the Income Tax Act, 1961 [hereinafter referred to as the Act ]. 2. The grounds of appeal filed by the assessee are as follows: 1. The Learned Commissioner of Income Tax (Appeals)-4, Ahmedabad has erred in law and on facts of the case in confirming the order of the Assessing Officer of levying penalty of Rs. 36,96,378/- u/s. 271(1)(c) of the Act. 2. The Learned Commissioner of Income Tax (Appeals)-4, Ahmedabad has erred in law and on facts of the case in confirming the order of the Assessing Officer of levying penalty though the initiation for penalty proceedings has been made vide notice dated 18.11.2015, which is defective in as much as the said notice was issued for furnishing inaccurate particulars of income or concealment of income and hence, deemed to be null and void. 3. The appeal against addition of Rs. 1,22,24,800/- has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments, the Ld. Counsel relied on the order of the Hon'ble High Court of Karnataka in the case of Ankita Electronics (P.) Ltd. (2017) 79 taxmann.com 34 (Karnataka) wherein it was held as follows: 14. In the present case, the details of the claim were provided by the assessee. The question is as to whether on such details, deductions could be allowed or not is still in doubt. Such questions have been admitted for determination by the High Court in the appeal filed by the assessee. The Apex Court in the aforesaid case of Reliance Petroproducts (supra) also held that merely because the assessee had claimed the expenditure, which claim was not acceptable to the revenue, that by itself would not, in our opinion, attract the penalty under Section 271(1)(c). If we accept the contention of the Revenue then in case of every return where the claim made is not accepted by AO for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the legislature . 15. In view of the aforesaid decision, we do not find any good ground to differ with the view taken by the Tribunal and we are also of the opinion that no substantial question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention to avoid tax. The reply of the assessee is not acceptable in this respect as narrated above. Therefore, I am convinced that the assessee has committed default of concealment of income and it's source and furnishing inaccurate particulars of income and thus rendered itself liable for penalty under section 271(1)(c) of the Income Tax Act. Thus, it is clear from penalty order that assessing officer has initiated and imposed penalty on both limbs, concealment of income and for furnishing of inaccurate particulars of income , hence there is no definite charge on the assessee. 12. We note that Hon'ble Supreme Court in the case of T Ashok Pai - 292 ITR 11 (SC) held. that concealment of income and furnishing of inaccurate particulars of income carry different connotations. The Hon'ble Gujarat High Court in case of Manu Engineering Works - 122 ITR 306 (Guj.) held. that the penalty order has to be clear as to limb for which it is levied and the position being unclear penalty is not sustainable. Further, on the identical facts, Hon'ble Gujarat High Court in case of Nayan C. Shah vs. ITO [Tax Appeal No. 543 of 2012 (Guj- HC)] held. as follows: 11. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mann 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 assesses 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 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 quasi-criminal case, but it was incumbent upon the IAC to come to a positive finding as to whether there was concealment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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