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TMI Blog2015 (10) TMI 2174X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot remain alive any more. - Decided in favour of assessee Disallowance of deduction u/s 80 HHC - Held that:- When the AO has found that penalty was not leviable with respect to similar disallowance made for deduction u/s 80HHC in A.Y. 2003-04, then following the same yardsticks, he should not take a different stand in this year and burden the assesse with rigorous provisions of penalty. - Decided in favour of assessee AO has made disallowance on the basis of return of income filed by the assessee and audit report of the assessee. The assessee has made its claim in the profit and loss accounts and computation sheet giving complete facts and particulars. Thus, it cannot be said that there was concealment of facts. The assessee had mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Law and on facts in sustaining the Penalty of ₹ 22,08,681/- u/s 271(I)(c) of the Income Tax Act without appreciating the following; (a) That the sum of ₹ 53, 16,657/ - being the amount of disallowances of deduction u/s 80IB was done contrary to the full disclosure and on the basis of report of auditors in Form No.10CCB which was attached with the return of income (b) That the sum of ₹ 3,44,238/- being the amount of disallowance of deductions u/s 80 HHC was also done contrary to the full disclosure on the basis of declaration by auditors which too was attached to the return of income. This amount was not considered for levy of 271(1)(1) in the assessment order. (c) Penalty on wrong claim of ₹ 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his issue, as may considered appropriate by him, at that stage, as per law and facts. Thus, Ground no.2(a) is allowed for statistical purposes. 4. Ground No.2(c) is: with regard to levy of penalty on wrong claim of ₹ 76,113/-. This ground has not been pressed by the Ld. Counsel and therefore, Ground no.2(c) is dismissed and levy of penalty on this amount is confirmed. 5. Ground No.2(d), is with regard to levy of penalty of ₹ 3,75,000/- for disallowance on account of interest. It is seen by us from the order of ITAT that this disallowance has been deleted. Thus, the whole premise of levy of penalty on this issue ceases to exist. The very basis of levy of penalty is no more in existence, thus penalty cannot remain alive any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58 ITR 298(SC) for the proposition that consistency should be followed by the Revenue on year to year basis for deciding various issues of the taxpayers. In absence of consistent approach, it may give rise to a chaotic situation and avoidable litigation, which may in turn hamper voluntary compliance by the taxpayers. (ii) It has been noted by us that the AO has made disallowance on the basis of return of income filed by the assessee and audit report of the assessee. The assessee has made its claim in the profit and loss accounts and computation sheet giving complete facts and particulars. Thus, it cannot be said that there was concealment of facts. The assessee had made a claim, duly supported with the audit report from the qualified acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue respectively, nor has he given a finding for each issue separately as to whether there was a concealment of income or furnishing of inaccurate particulars of income. The AO has held in the penalty order that various disallowance made by the AO have been confirmed by the Ld CIT(A) and therefore, it is automatically established that the assessee has concealed its income and furnished inaccurate particulars, which has led into concealment of income within the meaning of section 271(1)(c) of the Act. In our considered view, this approach of the AO for levy of penalty is not correct as per law. Penal provisions are quite harsh, these can make the assessee liable for prosecution, as well. Therefore, the AO is obliged, under the law, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im made by the Assessee, but for levy of penalty, the AO may be required to disprove the claim or to show that the claim made by the assessee was bogus. In the present case, no such exercise has been done at all by the AO while levying the penalty and the penalty has been levied in a highly automatic, mechanised and casual manner. This kind of approach gives rise to avoidable hardships to the taxpayers and should be avoided. Therefore, keeping in view the aforesaid discussion, we find that levy of penalty on the disallowance of deduction u/s 80HHC was not justified and therefore, same is deleted and Ground No.2 (b) is allowed. 7. In the result, the appeal of the assessee is partly allowed. Order pronounced in the open court on 24th Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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