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TMI Blog2012 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... s not passed a speaking order on the issues raised in this appeal while the assessee contends lack of opportunity - matter remanded to CIT(A) - ITA No.915/Del. /2011 - - - Dated:- 24-5-2012 - SHRI A.N. PAHUJA, SHRI C.M. GARG, JJ. Assessee by Shri Ravi Pratap Mal, AR Revenue by Dr. B.R.R. Kumar, DR O R D E R A.N. PAHUJA:- This appeal filed on 17.02.2011 by the assessee against an order dated 06.04.2010 of the CIT(A)-Rohtak, raises the following grounds:- 1. That the learned CIT(A), Rohtak has erred both in law and on facts in upholding the levy of penalty of Rs.39,970/- u/s 271(1)(c) of the Act. 2. That the learned CIT(A) has confirmed the penalty without providing any opportunity to the appellant much less fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as the Act ] on 22nd September, 2005. The assessee did not comply with the said notice. Even the notices dated 12.4.2006, 15.5.2006 and 4.8.2006 issued u/s 142(1) of the Act, were not complied with nor the assessee submitted any details. On independent inquiries by the AO, it was revealed that the assessee deposited market fee of Rs.72,785/-@2% of the sales in the year under consideration. The AO observed that the assessee made total sales of Rs.36,39,250/- and earned commission of Rs.1,81,963/- @5% of the sales. On the basis of these inquiries, the AO issued a show cause notice dated 31st August, 2006 asking the assessee as to why its income from commission be not taken as Rs.90,981/-after allowing 50% of the receipts by way of expenses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 440/-. 3. On appeal, though the ld. CIT(A) fixed the appeal for hearing on 22nd March, 2010 and again on 5.4.2010, none appeared before the ld. CIT(A) on these dates. Accordingly, the ld. CIT(A) upheld the levy of penalty, holding as under:- A perusal of the penalty order shows that the appellant had not even disclosed the names of the farmers who had brought stock of vegetables to his shop which was found in excess by the market committee authorities during survey. It had not submitted any reply before the AO during penalty proceedings. Quantum appeal was dismissed by the undersigned vide order dated 4.2.2008. From the aforesaid, there is no alternative other than construing that the stock found in excess by the market committee autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeared nor submitted any reply. The penalty u/s 271(1) (c) of the Act is leviable if the AO is satisfied in the course of any proceedings under this Act that any person has concealed the particulars of his income or furnished inaccurate particulars thereof . It is well settled that assessment proceedings and penalty proceedings are separate and distinct and as held by Hon'ble Supreme Court in the case of Ananthraman Veerasinghaiah Co. Vs. CIT, 123 ITR 457, the findings in the assessment proceedings cannot be regarded as conclusive for the purposes of the penalty proceedings. It is also well settled that the criterion and yardsticks for the purpose of imposing penalty u/s 271(1)(c) of the Act are different than those applied for making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same have been disclosed by him. 5.1 If the case of any assessee falls in any of these three categories, then the deeming provision stipulated in Explanation 1 to section 271(1)(c) comes into play, and the amount added or disallowed in computing the total income shall be considered as the income in respect of which particulars have been concealed, for the purposes of clause (c) of section 271(1), and the penalty follows. On the other hand, if the assessee is able to offer an explanation, which is not found by the authorities to be false, and assessee has been able to prove that such explanation is bona fide and that all the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reasons by the quasi-judicial authorities is an important safeguard to ensure observance of the rule of law. It introduces clarity, checks the introduction of extraneous or irrelevant considerations and minimizes arbitrariness in the decision-making process. We may reiterate that a decision does not merely mean the conclusion . It embraces within its fold the reasons forming basis for the conclusion.[Mukhtiar Singh Vs. State of Punjab,(1995)1SCC 760(SC)]. As is apparent, the impugned order suffers from lack of reasoning and is not a speaking order. In view of the foregoing, especially when the ld. CIT(A) has not passed a speaking order on the issues raised in this appeal while the assessee contends lack of opportunity , we consider i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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