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TMI Blog2017 (4) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... as erred in confirming the penalty of Rs. 1374742/- levied u/s 271(1)(c) of the Income Tax Act and has failed to appreciate that the company has not concealed its income or furnished inaccurate particulars thereof and as such the penalty u/s 271 (1)(c) has been wrongly imposed and the penalty deserves to be deleted. (b) That the Hon'ble CIT(A) has erred in confirming penalty of Rs. 1374 7 42/- levied by the ld. AO @ 100% of the tax allegedly sought to be evaded by filing of alleged inaccurate particulars of income or concealment of particulars of income u/s 271 (1 )(c) of the Income Tax Act in respect of disallowance out of advertisement and publicity expenses of Rs. 4059064/- and out of interest paid of Rs. 25136/-.1he expenses are g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 28.3.2012 @100% amounting to Rs. 13,74,742/-. 3. Aggrieved with the penalty order, the assessee preferred an appeal before the Ld. CIT(A), who vide his impugned order 05.12.2013 dismissed the Appeal of the Assessee. 4. At the time of hearing, Ld. Authorised Representative of the Assessee, Sh. Rajesh Jain, CA stated that the quantum addition on which the penalty has been imposed, has already been deleted by the ITAT in ITA No. 2123/Del/2011 (AY 2007-08) vide Order dated 03.08.2016. In this behalf he filed the copy of the Tribunal's Order dated 03.08.2016 in assessee's own case and he requested that penalty in dispute may be deleted. 5. On the other hand, Ld. DR relied upon the orders of the authorities below. 6. We have careful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that notice issued to this entity received with the remarks "Left". The Ld. Counsel also pointed out that the CIT(A) dismissed claim of the assessee by taking a hyper technical approaches and without proper appreciation of facts. This impugned order was be set aside. He drew our attention to Para 2.4 of the order of the CIT(A) and pointed out that the first appellate authority without providing opportunity to explain its case properly. The Ld. Counsel pointed out that as per assessee profit & loss a/c (APB Page 11), Schedule 12 to final accounts (APB page 24) the total turnover was 13 crores and in the field of cold drinks and beverages advertisement and publicity has vital role to play to boost sale of these items and assessee genuinely in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Representative (DR) strongly supported the action of the A.O and contended that the CIT(A) after proper appreciation of facts upheld the order of the A.O on this issue which requires no interference. 6. On careful consideration of above in the present case the A.O dismissed claim of the assessee by merely observing that the notice issued u/s 133 (6) of the Act could not be served on the payee (M/s Images) as it left the premises. The CIT(A) proceeded to confirm the same by observing that no payment has been made up to 3rd July 2006 and all the payments have been made on two dates i.e on 5/8/2006 through 13 cheques of around figure of Rs. 4,00,000/- each. The CIT(A) further observed, from the copy of the FIR of payee, that a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis for making disallowance as to basis of doubt only. The payee is a tax payer and if he left the earlier place of business then he may be called from new address to explain his position and in the extent of return of notice unserved on the old address can be obtained from the payer assessee to establish its claim. We are of the considered opinion that the CIT(A) upheld the addition on wrong premise and by considering the irrelevant facts and thus we decline to accept conclusion drawn in the first appellate order. At the same time, from the explanation and documents filed by the assessee we clearly observe that the assessee submitted all relevant documents, evidence and explanation within his control to establish its claim and by showing t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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