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TMI Blog2003 (6) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... s case the ld. CIT(A) erred in not adjudicating upon the ground No. 1 vis . the order under section 271(1)( c ) read with Explanation 3, is illegal, bad in law and requires to be quashed. 1.2 The order under section 143(2) r.w.s. 147 was passed on 31-1-1996 on the income of Rs. 1,60,320 which was the same income as was offered for tax by the appellant and the order under section 271(1)( c ) levying penalty of Rs. 71,823 at 100% of tax sought to be evaded on the total income of Rs. 1,60,320 was passed by the Assessing Officer on 9-12-1999. 1.3 On the facts and in the circumstances of the case, the ld. CIT(A) ought to have passed order under section 271(1)( c ) before the expiry of the financial year in which the proceedings in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation 3 to section 271(1)( c ) on the ground that the assessee had failed to file the return of income under section 139(1) of the Act. 2.3 The ld. CIT(A) ought to have directed to delete the penalty levied on income of Rs. 1,60,320 in place of further directing to levy penalty on alleged concealed income of Rs. 61,260, when no penalty proceedings were initiated under section 271(1)( c ) of the Act on the said income of Rs. 61,260 and no penalty is leviable in respect of Rs. 61,260. 2.4 The Hon. Tribunal may be pleased to hold that no penalty is leviable on income of Rs. 61,260 as the said income is not a concealed income and direct that the penalty to be levied at 100% of tax on Rs. 61,260 as directed by the ld. CIT(A) be deleted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had disclosed an amount of Rs. 61,000 as against Rs.30,000 though the credit was genuine and had been received through crossed cheque. According to him the disclosure was only to avoid litigation because non-cooperation of the creditor and for this purpose relied on the decision of ITAT, Madras Bench, Madras 84 TTD 342. 3.2 Alternatively, the counsel submitted that penalty should be restricted on the income of Rs. 30,000. 4. The ld. DR on the other hand supported the order of the CIT(A). 5. The facts relating to the issue are that the return for the assessment year 1993-94 was not furnished by the assessee within the time prescribed under section 139(1) or section 139(4). However, the same was furnished on 22-12-1995 declaring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty order uphold the levy of penalty of Rs. 61,260 as per para 4 of his order which reads as under: "4. From the above it is not known whether the assessee was assessed for assessment year 1994-95 or not, but in any case the return of income for assessment year 1993-94 is filed before the expiry of two years from the end of the assessment year as laid down in section 153(1) of the Act. Even the notice under section 148 has been issued before the expiry of the period of two years, i.e. it has been issued before 31-3-1996 (date of issue 3-1-1996). In this view of the matter it is clear that Explanation 3 to section 271(1)( c ) is not applicable. Therefore, the return filed on 22-12-1995 declaring income of Rs. 98,860 can be said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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