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TMI Blog2017 (4) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... outstanding amount was surrendered to avoid litigation and no penalty was leviable. We further note that the Ld. CIT(A) in this case concluded that “the penalty could not be levied on the amount surrendered by the assessee, unless there was material on the record to show that the surrendered item was his income. There was no case of furnishing of inaccurate particulars of income so as to make the assessee liable for penal consequences” which was later been confirmed by the ITAT, Delhi, as aforesaid. Keeping in view of the facts of the case, we are of the considered opinion that it become evident that the income assessed by the AO was agreed upon by the assessee as a measure of cooperation and with a view to escape penal consequences. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the additions made in the assessment order under section 143(3) of the Act dated 21.11.2011 ignoring the fact that the addition made in the assessment order by wrongly invoking the provisions of Section 41(1)(a) of the Act only on the basis of personal judgement of the AO and the same are debatable additions. 4. That the Ld. CIT(A) erred in law and on facts in wrongly applying decision of Hon ble Supreme Court in the case of Mak Data P. Ltd. vs. CIT, 358 ITR 593. 5. That the appellant company craves leave to add, delete, modify and amend any grounds of appeal before or at the time of hearing of appeal. 6. That above grounds of appeal is without prejudice to each other. 2. The brief facts of the case are that asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed by him in respect of M/s International Merchandise Corporation vide letter dated 10.10.2011 and submissions in respect of remaining two parties were made through letter dated 21.10.2011. The submissions made by the assessee have been made part of the penalty order (para 3), which were considered by the Assessing Officer. After going through the submissions of the assessee, it was observed by the Assessing Officer that in respect of all the above parties that claim of liabilities was quite old (ranging from 10 years to 18 years) in respect of which assessee failed to furnish any confirmation despite being given ample opportunities. Therefore, Assessing Officer observed that it proves that assessee has nothing to say in the matter an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty. 4. Aggrieved with the order of the Ld. CIT(A), assessee is in appeal before the Tribunal. 5. Ld. A.R. of the assessee has stated that the Ld. CIT(A) was erred in confirming the action of the AO in levying the penalty of ₹ 5,16,894/- relying upon the impugned penalty order which needs to be quashed. She further stated asseessee did not contest the addition made in the assessment order passed u/s. 143(3) of the I.T. Act and AO on the basis of the additions made levied the penalty u/s. 271(1)(c) of the I.T. Act by wrongly invoking the provisions of section 41(1)(a) of the I.T. Act and Ld. CIT(A) also wrongly applied the case law. In view of the above, she requested that the penalty in dispute may be deleted because the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it become evident that the income assessed by the AO was agreed upon by the assessee as a measure of cooperation and with a view to escape penal consequences. However, we further note that assessment order also do not indicate any concealment of income at all. In our view, the income was merely estimated without finding any concealment as such, hence the penalty is not attracted. We also find that 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. 8. In the background of the aforesaid discussions and respectfully following the prece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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