9911796707
TMI Blog2017 (12) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... the following grounds of appeal: 1. The Ld. AO was failed to recoded any direction to initiate the penalty in terms of legal fiction under section 271(1B) of the Income Tax Act in its assessment order under section 143(3) dated 27.12.2007 and hence entire penalty proceeding is required to be quashed in absence of satisfaction to initiate the penalty under section 271(1)(c) of the Income Tax Act. 2. The ld. CIT(A) erred in conforming action of the ld. AO levied penalty of Rs. 15,00,483/- under section 271(1)(c). 3. The Ld. CIT(A) passed quantum order on 10.11.2008 against which appeal was already preferred by the assessee before the Hon'ble ITAT. During the pendency of quantum appeal before the ITAT, the Ld. AO levied the penalty v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was confirmed. The Assessing Officer levied penalty on the addition/ disallowance on account of capitalisation of expenditure. The Assessing Officer levied penalty under section 271(1)(c) of Rs. 15,00,483/- vide order dated 29th March 2010. On appeal before the ld. CIT(A), the penalty order was upheld. On further appeal before the Tribunal, the matter was restored back to the file of Assessing Officer vide order dated 06.06.2012 in ITA No. 4144/Mum/2011. The case was restored to examine if the penalty order was passed within stipulated period prescribed under section 275 and to decide the question of penalty afresh. The Assessing Officer in the restoration proceeding again confirmed the penalty order vide order dated 26th February 2014. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in D.M. Manasvi Vs. CIT[1972] 86 ITR 557(SC). In alternative submissions, it was argued that the order of penalty is based merely on difference of opinion between the assessee and the Revenue on account of nature of expenses. According to Revenue the expenses incurred by the assessee gives enduring benefit to the assessee and the same was required to be treated as capital in nature. However, as per the assessee, the expenses are Revenue in nature and claimed the benefit of such expenditure in the year only. The expenditure was disallowed, mere disallowance would not lead to levy of penalty. In support of his submission the ld. AR of the assessee relied upon the decision of Hon'ble Supreme Court in CIT Vs Reliance Petroproducts Pvt. Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer Vs Punj Hospitality Private Limited and Union of India Vs. Kamalakshi Finance Corporation Ltd. AIR (1972) (SC) 711. 4. On the other hand the ld. DR for the revenue supported the order of the authorities below. It was argued that in the restoration proceedings the assessee failed to substantiate his contention that the order of the penalty was passed beyond the prescribed period of limitation as provided under section 275 of the Act. On merit it was argued that the disallowance made in the quantum assessment has been confirmed by the appellate authorities. 5. We have considered the rival submissions of the ld. Representatives of the parties and have gone through the orders of the authorities below. The perusal of the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 29.03.2010 was beyond the stipulated time and held that the order was passed within time. The assessing officer again confirmed the penalty order without specifying, under which limb of section 271(1)(c) the penalty is levied. The ld CIT (A) confirmed the order of penalty without specifying the specific limb of section 271(1)(c). The ld CIT(A) concluded as under: " I have further gone through the present as well as previous assessment order and penalty order of the AO as well as CIT(A)'s order on quantum as well as penalty . Keeping in view the entire facts and circumstances of the case, it has been clearly established by the AO that the claim of the assessee being capital in nature could not be established and the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Dilip N. Shorff Vs CIT (291 ITR 519 SC) held that when the assessee has furnished all the particulars of income the imposition of penalty is not automatic. Further, Hon'ble Apex Court in Reliance Petroproducts Ltd Vs CIT (322 ITR 158 SC) held that mere making a claim which is not sustainable in law does not attract the penalty under section 271(1)(c). The Hon'ble Andhra Pradesh High Court in CIT vs. Lotus Construction, V.V. Projects and Investment Private Limited Vs DCIT, and in Chennakeshwar Pharmaceutical Vs CIT (supra) and Hon'ble Delhi High Court in CIT Vs Ram Commercial Enterprises Ltd. (supra) held that recording of the satisfaction in the assessment order about the initiation of penalty is must. In absence of proper satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
