TMI Blog2024 (4) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... ture; it is held that penalty cannot be levied. Though this cannot be a universal principle. We find that had the case is that the assessee is unable to substantiate the amount of expenditure; the learned assessing officer should have disallowed 100 % percent of such expenditure by giving a sufficient reason. By disallowing 50% and allowing 50% of that expenditure, the learned assessing officer is also not clear whether the assessee has concealed income or has furnished inaccurate particulars of income. In the assessment order the charge is not specific. In the penalty order, twin charges are invoked for the levy of the penalty. When there is no specific charge raised by the AO at the time of assessment as well as in the notice and assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) erred in confirming the penalty of Rs. 8,77,980/- u/s 271(1)(c) of the Income tax Act 1961,. B. The CIT Appeals erred in levying penalty ignoring the below explanations given by the Appellant. i. CIT appeals made adhoc additions @50% of expenses of Rs. 56,66,854/- resulting in addition of Rs. 28,33,427/-, Disallowance was in respect of the expenses towards salary, wages gravelling etc. ii. The AO has not brought any material evidence on records to establish that the assessee has concealed income or provided inaccurate particulars. iii. For imposing penalty under s. 271(1)(c), a definite finding about concealment is necessary. However, in the present appeal the addition is based on estimation. 04. Brief facts of the case shows that ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantiate the claim therefore the learned assessing officer passed an assessment order disallowing 50% of ₹ 5,666,854/ under section 37 (1) of the act. It was further noted that during the year the assessee has received a sum of ₹ 7934/ on account of income in respect of units of non-residents under section 196A. The assessee has not filed the return of income therefore the above receipt was also considered as the income. 07. As the assessee has not filed any return of income penalty proceedings were initiated under section 271(1)(c) by issue of notice under section 271(1)(c) read with section 274 of the income tax act on 10/4/2019. The assessee furnished the reply on 16th/4/2019 that the case of the assessee does not fall wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce made on ad hoc basis and further it has been made purely on the basis of non-furnishing of the complete details with respect to the supporting evidences. It was submitted that assessee has furnished the details of expenditure month wise format. The learned assessing officer did not ask for the detailed explanation of each and every expenditure. Non-furnishing of the information which has not been called for in the assessment proceedings by the assessing officer does not result into levy of penalty under section 271(1)(c) of the act. 010. The learned departmental representative vehemently stated that addition has been made to the total income of the assessee for non-furnishing of the details. The return of income was filed only in respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome. The assessee did not file its original return of income. When the reassessment proceedings culminated into an assessment order, the addition was made with respect to the reasons for which reassessment proceedings were initiated and further the learned assessing officer asked about the details of the expenses incurred by the assessee and claimed as deduction under section 37 (1) of the act. The assessee merely submitted the month wise amount of the expenditure incurred under each of the head. The learned assessing officer stated that assessee has failed to substantiate the same with supporting evidence. Therefore the 50% of the expenditure were disallowed. At the time of making of the assessment order the learned assessing officer has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 100 % percent of such expenditure by giving a sufficient reason. By disallowing 50% and allowing 50% of that expenditure, the learned assessing officer is also not clear whether the assessee has concealed income or has furnished inaccurate particulars of income. In the assessment order the charge is not specific. In the penalty order, twin charges are invoked for the levy of the penalty. In view of this we find that when there is no specific charge raised by the ld AO at the time of assessment as well as in the notice and assessee has not been confronted with the same specific charge for furnishing reply before the assessing officer, the learned assessing officer levying a penalty on both the charges, without proving that both the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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