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TMI Blog2015 (12) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts alone would not be sufficient to conclude that assessee has either furnished inaccurate particulars of income or concealed the particulars of income so as to impose penalty under section 271(1)(c). It is well known that assessment proceedings and proceedings for imposition of penalty under section 271(1)(c) are two distinct and separate proceedings. In the facts of the present case, on a reference to the statement of account of loan transaction with M/s. Emaar Diamonds Ltd., a copy of which has been submitted at Page-8 of the paper book, it is very much clear that the assessee had an opening balance of loan to M/s. Emaar Diamonds Ltd. amounting to ₹ 2,32,26,000. During the year, the assessee has also received payment against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saktijit Dey, JM This is an appeal by the assessee against the order dated 16th February 2012, passed by the learned Commissioner (Appeals)-9, Mumbai, sustaining the penalty imposed under section 271(1)(c) of the Income Tax Act, 1961 (for short the Act ) for the assessment year 2005-06. 2. Briefly the facts are the assessee is a company engaged in the business of import and export of diamond and studded jewellery. For the assessment year under consideration, the assessee filed its return of income on 30th October 2005, declaring total income of ₹ 9,71,76,944. During the assessment proceeding, the Assessing Officer noticed that the assessee has advanced loans to its sister concern Emaar Diamonds Ltd. and as on 1st April 2004, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of section 2(22)(e) is attracted. He, therefore, treating the amount of ₹ 42,74,000, as deemed dividend added back to the return of income. The addition made under section 2(22)(e) was also confirmed by the Commissioner (Appeals). Though, the assessee challenged the addition made under section 2(22)(e) of the Act before the Tribunal, but, as it appears from the material on record the ground raised on the issue before the Tribunal was not pressed at the time of hearing of appeal. Therefore, the addition made under section 2(22)(e) attained finality. On the basis of addition made as aforesaid, proceeding for imposition of penalty under section 271(1)(c) was initiated by the Assessing Officer with issuance of a show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maar Diamonds Ltd. However, since M/s. Emaar Diamonds Ltd., is based in Surat, immediately after the mistake was noticed, the assessee on 28th September 2004 paid back an amount of ₹ 50 lakh to the said company. To prove such fact the assessee referred to the statement of account of loan to M/s. Emaar Diamonds Ltd. as submitted in paper book. He, therefore, submitted, only because the assessee has accepted the addition of ₹ 42,70,000, under section 22(2)(e) in the quantum proceedings that will not automatically lead to imposition of penalty under section 271(1)(c). He submitted, as there is no deliberate attempt by the assessee to furnish inaccurate particulars of income or concealment of particulars of income imposition of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars of income or concealed the particulars of income so as to impose penalty under section 271(1)(c). It is well known that assessment proceedings and proceedings for imposition of penalty under section 271(1)(c) are two distinct and separate proceedings. Therefore, in the proceeding for imposition of penalty under section 271(1)(c) the facts and evidence have to be examined and re-appreciated afresh to find out whether a case for furnishing of inaccurate particulars of income or concealment of income is made out. In the facts of the present case, on a reference to the statement of account of loan transaction with M/s. Emaar Diamonds Ltd., a copy of which has been submitted at Page-8 of the paper book, it is very much clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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