TMI Blog2022 (9) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty order, the A.O. has clearly mentioned that penalty proceedings for concealment of income initiated by way of issue of notice 274 r.w.s. 271(1)(c) - Similarly, in the penalty order, the assessing officer held that the assessee has willfully and deliberately concealed income by not filing the Return of Income. Therefore the assessee is liable for penalty u/s. 271(1)(c) read with Explanation 1 of the Act. As in the assessment order, the assessing officer also initiated penalty proceedings under 271F of the Act as well as u/s. 271B of the Act for not getting the books audited. The conclusion arrived by the Ld. CIT(A) is legally not correct and the same is hereby set aside and the penalty order passed u/s. 271(1)(c) by the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing a notice u/s. 148 of the Act on 29.11.2013 which was duly served on the assessee. However the assessee did not file the Return of Income in response to the 148 notice. The assessee was issued with 142(1) notice and other notices, summons for 14th times between 17.07.2013 to 10.02.2015, in spite of proper service of notices, the assessee has not attended the hearing. 2.1. Only in the 15th hearing namely 12.03.2015 the Authorized Representative submitted the computation of total income for the Assessment Year 2010-11, along with the copy of balance sheet and Form No. 3CA and 3CD however Return of Income was not filed. After perusal of Balance Sheet, Tax Audit Report a show cause notice was issued on 12.03.2015, why the assessment proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Return of Income. Following the judgment of the Hon ble Gujarat High Court in the Case of A.M. shah Co. vs. CIT (2000) 108 Taxmann.com 137, in the case of CIT vs. Zoom Communication P. Ltd. reported in 191 Taxmann.com 179 (Delhi). The Hon ble Apex Court judgment in the case of Mak Data Pvt. Ltd. vs. CIT-II in Civil Appeal No. 9772/ of 2013. 3. Aggrieved against the same, the assessee filed an appeal before the Ld. CIT(A). The Ld. CIT(A) deleted the penalty on the ground that the A.O. himself is not clear about the defaults committed by the assessee. There is no dispute that the assessee did not file the Return of Income and the A.O. accepted the income as shown by the assessee in the computation of income, except by making a minor add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant did not file return of income and the AO accepted the income as shown by the appellant in the computation of income except minor additions u/s.14A of the Act. There are separate provisions in the Act u/s. 271F for non filing of return of income and penalty for non filing of return can be levied u/s.271F of the Act. The facts of the case show that this is not a case of concealment of income or furnishing inaccurate particulars of income which can be covered u/s. 27l(1)(c) of the Act, hence, penalty levied by the AO u/s.271(1)(c) is not justified in this case. Moreover, it is a fact that the penalty was initiated for concealment of particulars of income whereas the AO has levied the penalty for furnishing inaccurate particulars of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated for concealed of income and imposed for concealment of income. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. 5. It is, therefore, prayed that the order of the Ld. CIT(A) be set aside and that of the A.O. be restored to the above extent. 4.1. The Ld. Sr. D.R. Mr. Shramdeep Sinha submitted that as can be seen from the assessment order, the assessing officer has initiated penalty proceedings both u/s. 271(1)(c) for concealment of income and also issued penalty notice u/s. 271F for not filing the Return of Income. It is not the case that the Assessing officer has not initiated u/s. 271F proceedings in assessee s case. The assessee is a limited compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to restore the penalty order made by the Assessing Officer and allow the revenue s appeal. 5. None appeared on behalf of the assessee in today s hearing as well as in previous hearing date. It is seen from record, the original assessment order was passed is a best judgment assessment passed u/s. 144 read with 147 of the Act. During the penalty proceedings also, the assessee has not participated in the hearings on 25.03.2015 and 07.07.2015. The assessee being a Public Ltd. Company and having not filed the Return of Income for the assessment year 2010-11 and also not responded to 147 notice in spite of repeated opportunities. Therefore the Assessing Officer treated the entire income as concealed income and levied minimum penalty of Rs. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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