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TMI Blog2017 (9) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 143(3)(ii) of the Income Tax Act, 1961(hereinafter 'the Act'). The penalty was levied by DCIT Circle 17(2), Mumbai vide order dated 05-03-2014 under section 271(1)(c) of the Act. 2. The only issue in this appeal of Revenue is against the order of CIT(A) deleing the penalty levied by the AO u/s 271(1)(c) of the Act on the following three items: - "i. Unexplained investment towards discrepancy in stock 15,12,091 ii. Loan received from the HUF of the appellant 2,00,000 iii. Bogus commission paid by the assessee 12,95,000 Total 30,07,091/ 3. The Revenue has raised the following two grounds: - "1. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the penalty w.r.t unexplained investme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m satisfied that penalty is clearly leviable in this case. " 5. The first issue raised by the learned Counsel for the assessee is that the AO is not sure about the charge of concealment, whether it is fot concealment of particulars of income or for furnishing of inaccurate particulars of income. The learned Counsel for the assessee referred to Para of penalty order and Para of assessment order whereby the penalty initiated and levied by the AO. We have already reproduced this Para in above of this order. From the above Para of the penalty order, we are of the view that concealment is initiated and penalty is levied and the AO is not sure about the charge of levy of penalty under section 271(1)(c) of the Act. 6. At the outset, it is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings. It cannot be that the initiation would be only on one limb i.e. for furnishing inaccurate particulars of income while imposition of penalty on the other limb i.e. concealment of income. Further, the Tribunal also noted that notice issued under Section 274 of the Act is in a standard proforma, without having striked out irrelevant clauses therein. This indicates non application of mind on the part of the Assessing Officer while issuing the penalty notice." Respectfully, following Hon'ble Bombay High Court decision in the case of Samson Perinchery (supra) on specific charge, penalty levied by the AO cannot be sustained. Accordingly, we confirm the order of CIT(A) deleing the penalty and dismiss the appeal of Revenue. 7. Coming to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... butted, it is for the department to establish that the income which the assessee is alleged to have concealed is, in fact, his income as distinguished from deemed income of the assessee which he failed to disclose in his return. In the present case of the appellant, I find that effectively the penalty has been levied on the deemed income under section 69, which is not sustainable relying upon the aforesaid case laws. Hence, the penalty levied under section 271(1)(c) on this issue is deleted, and therefore, the ground of appeal is allowed. 4.3 I have perused the facts of the case and appellant's submissions carefully. I find that the addition has been made of the amount received from HUF of Rs. 2,00,000/- as unexplained cash credit under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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