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TMI Blog2017 (2) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... clinching any further evidence of concealment of facts. Further find that the assessee has admitted the addition only to avoid hazards of litigation and to buy the peace but the same do not constitute admission for the purpose of levying penalty. Section 271(1)(c) postulates imposition of penalty for furnishing of inaccurate particulars and concealment of income. On the facts and circumstances of this case the assessee’s conduct cannot be said to be contumacious so as to warrant levy of penalty. - Decided in favour of assessee - I.T.A. No. 3486/Del/2016 - - - Dated:- 2-2-2017 - Shri H. S. Sidhu, Judicial Member Assessee by : Dr. Rakesh Kumar Gupta, Adv. Sh. Somil Aggarwal, Adv. Revenue by : Sh. F. R. Meena, Sr. Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to this proposition. 4. I have heard both the parties and perused the records especially the Hon ble High Court of Patna decision dated 6.5.2008 reported in (2009) 310 ITR 0195, in the case of Dr. Ajith Kumar Pandey vs. Income Tax Appellate Tribunal, wherein the Hon ble High Court has held that a person aggrieved by an order imposing penalty, if approaches the Tribunal by preferring an appeal, imposition of penalty, having no nexus with the total income of the assessee, it would not be discernible what is the total income of assessee and accordingly, such an appeal will be covered by Cl. (d) of s. 253(6) and fee payable before the Tribunal is ₹ 500/- only. Therefore, in view of the aforesaid judgment the objection raised by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. Therefore penalty proceedings u/s 271(1) (c) of the I.T. Act, 1961 were initiated by issue of notice u/s 274 read with section 271 of the I.T. Act, 1961 dated 15.12.2011. Another notice was issued to the assessee on 22.11.2013 fixing the hearing on 20.12.2013 providing an opportunity to show cause why penalty u/s 271(1)(c) should not be levied. No reply was received by the AO. After introduction of Explanation to Section 271(1)(c) the revenue is not required to prove mens rea on the part of the assessee. AO observed that the assessee has furnished inaccurate particulars of income to the extent of ₹ 5,00,000 because the assessee company made certain claims by way of business expenditure in the return of income but was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessee s reply dated 1.12.2011 filed before the AO; copy of assessment order dated 15.12.2011 passed by the AO u/s. 143(3) of the Act read with section 254 of the I.T. Act, 1961 for AY 2002-03 and copy of assessee s letter dated 25.2.2013 filed before the AO regarding the surrender of disputed amount; copy of order dated 25.2.2013 passed by the Ld. CIT(A); copy of reply dated 20.12.2013 filed before the AO during the course of penalty proceedings for AY 2002-03 and copy of written submissions dated 11.8.2015 filed before the Ld. CIT(A) He submitted that during the course of assessment proceedings, the assessee fully disclosed all the information asked for and has nowhere furnished any inaccurate particulars. It was the further contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of the assessee. I find that there is no conclusive proof that the assessee concealed income or furnished inaccurate particulars of income. The AO has not brought enough incriminating material for concealment and there is no material for establishing the concealment independently in the given facts and circumstances of the penalty is not leviable, because all the documents submitted by the assessee were neither rejected by the AO as false or incorrect facts nor AO had clinching any further evidence of concealment of facts. I further find that the assessee has admitted the addition only to avoid hazards of litigation and to buy the peace but the same do not constitute admission for the purpose of levying penalty. 10.1 I also find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uasi-criminal proceedings, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act, or where the breach ..... X X X X Extracts X X X X X X X X Extracts X X X X
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