9911796707
TMI Blog2016 (12) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... HRA PRADESH HIGH COURT] - Decided in favour of the assessee - DB Income Tax Appeal No. 534/2008 - - - Dated:- 6-12-2016 - K. S. Jhaveri And Dinesh Mehta, JJ. For the Appellant : Prakul Khurana For the Respondent : Anuroop Singhi ORDER 1. By way of this appeal, the assessee has challenged the judgment and order of the Tribunal whereby the Tribunal has partly allowed the appeal filed by the department. 2. This Court while admitting the appeal on 22.04.2011 framed the following substantial questions of law: Can penalty for alleged Concealment of income or furnishing inaccurate particulars of income be levied when legality of assessment proceedings itself is subjudice before Hon'ble High Court and the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nand Kishore and others was not accepted and for the above bogus claim and other defects in accounts profit was determined by applying net profit rate rejecting book version. Claim of interest payment to Sh. Nand Kishore was also disallowed. In the period relevant to A.Y. 93-94 also the assessee claimed payment of hire charges at ₹ 73,500 to Sh. Nand Kishore from May, 1992 to September, 1992 his account was further credited by ₹ 47,000 on account of hire charges payable from September, 92 to March, 93. For the reasons given above the claim of payment of hire charges to the above person was not genuine in this year also and therefore there was a case of escapement/under assessment of income and accordingly reassessment proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had either concealed the income or furnished inaccurate particulars of income in his return before imposing penalty, we noticed that in the assessment orders passed by the assessing officer for the assessment year 19828 ‐ 3 (which is the subject matter of I.T.T.A.No.29 of 2000) and for the assessment year 19838 ‐ 4 (which is subject matter of I.T.T.A.No.33 of 2000), no such satisfaction is recorded. 6. Another decision of Supreme Court in case of Dilip N. Shroff Vs. Joint Commissioner of Income Tax Anr. (2007) 291 ITR 519 (SC) it has been held as under It is of some significance that in the standard proforma used by the Assessing Officer in issuing a notice despite the fact that the same postulates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Tribunal is required to be accepted. 8. We have heard Mr. Prakul Khurana and Mr. Anuroop Singhi. 9. Taking into consideration the decision of the Andhra Pradesh High Court which virtually considered the subsequent law and the law which was prevailing on the date the decision was rendered on 27.08.2012. In view of the observations made in the said judgment, we are of the opinion that the contention raised by the appellant is required to be accepted and in the finding of Assessing Officer in the assessment order it is held that the AO, has to give a notice as to whether he proposes to levy penalty for concealment of income or furnishing inaccurate particulars. He cannot have both the conditions and if it is so he has to say ..... X X X X Extracts X X X X X X X X Extracts X X X X
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