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TMI Blog2015 (11) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... ome or furnishing of inaccurate particulars of income. In the present case, the moment, assessment order has been set aside by the ITAT, the very addition on which the amount of tax sought to be evaded was to be calculated, has been extinguished. Therefore, the assessee cannot be charged with allegation that he has concealed particulars or furnished inaccurate particulars on the additions which made to his income. In the set aside assessment order, it is yet to be decided whether any addition is to be made to the income of the assessee or not. It will be in the discretion of the AO to initiate or not initiate penalty proceedings after passing the fresh assessment order. Therefore, in the present proceedings penalty is not sustainable up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 79,43,558 iii) Additions u/s.68 being cash credit in form of creditors : Rs.5,53,22,643/- He issued show cause notice under section 274 r.w. section 271(1)(c) of the Act inviting the explanation of the assessee as to why penalty under section 271(1)(c) of the Act be not imposed for the additions made to the income of the assessee. After hearing the assessee, the ld.AO has imposed penalty of ₹ 3,23,11,350/-. 4. Appeal to the CIT(A) did not bring any relief to the assessee, 5. Ld.counsel for the assessee at the very outset submitted that dissatisfied with the additions to the income of the assessee, the dispute was taken to the CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal for the purpose of filing appeal before the Tribunal. Considering the facts and circumstances and the documents placed on record, we have to take pragmatic and liberal approach while condoning the delay in the matter. Further, the assessee explained that in the earlier years the matter is restored to the file of the learned AO for reconsideration. The assessee further explained that in assessment year 2000-01 in the case of the same assessee, the Tribunal in ITA No.1507/Ahd/2005 and 1681/Ahd/2005 (supra) restored the matter to the file of the AO for reconsideration. The findings of the Tribunal in Para 6 are reproduced as under. 6. We have heard the parties and carefully perused the material on record. In our considered view the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, both the appeals are restored to the file of AO for deciding afresh. 7. On consideration of the above discussions, we are of the view since the majority additions were based on the findings given in assessment year 2000-01 in which the matter is restored to the file of the AO for reconsideration by the Tribunal, therefore, the totality of the circumstances would prove that the assessee is able to prove that it has sufficient cause for condonation of delay in filing the appeal within the period of limitation before the Tribunal. We accordingly, condone the delay in filing the appeal. The application of the assessee for condonation of delay is accordingly allowed. 8. Now, considering the additions on merits, it is clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 2000-01 dated 15-10-2010 (supra), we set aside the orders of the authorities below and restore all the grounds of appeal to the file of the AO for reconsideration of the issue. The AO shall give reasonable sufficient opportunity of being heard to the assessee. 9. In the result, the appeal of the assessee is allowed for statistical purposes. 7. Section 271(1)(c) of the Act has direct bearing on the controversy which reads as under: 271. Failure to furnish returns, comply with notices, concealment of income, etc.- (1) The Assessing Officer or the Commissioner (Appeals) or the CIT in the of course of any proceedings under this Act, is satisfied that any person (a) and (b) ** ** ** (c) has concealed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessee, and it is established that the assessee has concealed or furnished inaccurate particulars qua that addition, then apart from tax to be payable by the assessee, he would pay an amount equivalent to the tax or three times of the tax as penalty under section 271(1)(c) of the Act. Meaning thereby, the penalty would be computed equivalent to the tax sought to be evaded by the assessee on the additions made to his income for which he has held guilty of concealment of income or furnishing of inaccurate particulars of income. In the present case, the moment, assessment order has been set aside by the ITAT, the very addition on which the amount of tax sought to be evaded was to be calculated, has been extinguished. Therefore, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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