TMI Blog2018 (1) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahd/2014 - - - Dated:- 27-12-2017 - SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER For The Appellant : Shri P. M. Patel, A.R. For The Respondent : Shri Jayant Jhaveri, Sr. D.R ORDER PER MAHAVIR PRASAD, JUDICIAL MEMBER : This is an appeal by the assessee against the order of the Commissioner of Income Tax(Appeals)-XV, Ahmedabad, vide Appeal No.CIT(A)-XV/Wd.9(3)/14/12-13 dated 13/06/2014 for the Assessment Year (AY) 2003-04, on the following grounds: 1. Though Ld. A.O. neither proved concealment nor found furnishing inaccurate particulars of income, The Ld. Commissioner of Income Tax (Appeals)-XV, Ahmedabad is not justified to confirm the penalty of ₹ 1,30,000/- u/s.271(1)(c) of the Income Tax Act. 2. While calculating the amount of penalty., The Ld. Commissioner of Income Tax (Appeals)-XV, Ahmedabad has erred in not giving the effect of the order of honorable tribunal in quantum appeal. 3. The Ld. Commissioner of Income Tax(Appeals)-XV, Ahmedabad has erred in confirming penalty of ₹ 1,30,000/- without considering the difference between amount of receipts shown in case paper and receipt shown in 3C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnishing inaccurate particulars unless it is established that the assessee has acted with a malafide intention. A mere rejection of the claim of the assessee by relying upon different interpretation or on account of difference of opinion as regards the admissibility of expense or claim does not amount to concealment of the particulars of income or furnishing of inaccurate particulars of income. The admission or rejection of a claim is a subjective exercise and whether a claim is accepted or rejected has nothing to do with furnishing of inaccurate particulars of income. Merely because an expense or exemption claimed by the assessee has been disallowed or confirmed either on account of complete proof or divergence of opinion as regards its allowability, from that circumstance alone, it cannot be inferred that the assessee has consciously concealed the particulars of income or has furnished inaccurate, particulars of its income. The penalty proceeding being quasi criminal in nature, the entirety of circumstances must reasonably point, to the conclusion that the assessee has consciously concealed its particulars of, income or has deliberately furnished inaccurate particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it declared by the assessee was too low. As such, details were called for which included daily-case register, cash and bank book etc. On perusal of the case register produced by the assessee in Form No.3C, the A.O. noticed certain discrepancies which are illustrated in Page No. 3 of the order of assessment, for the sake of reference, the same is reproduced as under: Sl. No. Name of the patient Date of discharge Amount received as per case paper(Rs.) Amount shown in 3C register (Rs.) 1. Ismail Vora 16/10/2002 2825 Nil 2. Ismail Vora 25/10/2002 1175 Nil 3. Tapu N. parmar 27/11/2002 2800 Nil 4. Satishbhai 26/11/2002 1600 Nil 5. Vimal T. Khanna 26/11/2002 400 Nil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt of furnishing inaccurate particulars of income within the of sec.271(1)(c) of the I. T. Act. The submission made by the assessee in this respect is found to be correct. In the case of the assessee penalty was initiated not on the disallowance of expenditure but penalty was initiated on the estimation of the profit made by the A.O. As stated above, it was proved beyond any reasonable doubt that the assessee was not correctly recorded the receipts in its books of account. It is also a fact that even though the assessee was issued with a notice u/s.148 of the I.T. Act it continued to disclose the income which has already shown without making any amendments in the return of income filed. This clearly shows that the assessee has concealed its particulars of income. The assessee failed to offer any explanation for not recording the correct receipt in its books of account and also failed to offer any explanation for not producing the part of the documents for verification by the A.O. It is, therefore, obvious that the assessee has concealed its true particulars of income and thus exposed to the provisions of section 271(1)(c)of the I.T. Act. The reliance placed by the assessee in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Assessee is a partnership firm run Sushrusha Hospital. In this year the return was filed showing total income at ₹ 2,70,425/-. The AO on meager discrepancies rejected audited books of accounts and estimated net profit @ 6.1%. Being dissatisfied with the said order, assessee filed an appeal before ld. CIT(A) and ld. CIT(A) reduced net profit @ 3%, further, appeal filed before the ITAT, which also reduced estimation of net profit @ 2% of turnover. While passing the order of the penalty, ld. AO has not considered the relief granted by the ITAT. Thereafter, CIT(A) has also not considered the relief granted by the ITAT. Even though passed appeal order after deciding quantum appeal by ITAT. It is well settled principle that if there is no specific charge of either concealment of income or furnishing inaccurate particulars of income. No penalty u/s.271(1)(c) can be imposed while total income was estimated in view of the decision of ITAT. In the present case estimated income has been decided differently at different levels. In our considered opinion, in such case penalty cannot be levied. 5. In the result, penalty directed to be deleted and appeal filed by the assessee is allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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