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TMI Blog2017 (12) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... e paras hereinabove have already held that levy of penalty by the Assessing Officer holding the assessee to have concealed income and furnished inaccurate particulars of income was invalid and bad in law and the penalty order passed by the Assessing Officer has been cancelled. Consequently, the enhancement made on such order passed by the Assessing Officer, which is held to be invalid, does not stand. Since the CIT(A) has based his calculation on the order of Assessing Officer holding that the penalty is to be calculated with regard to concealed income of ₹ 1.24 crores and not the additional income of ₹ 32,09,950/-, the CIT(A) observed that the Assessing Officer had mistakenly calculated the same with respect to income of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in levying penalty relying on both limbs of section 271(1)(c) without specifically invoking the same in the show cause notices dated 19.12.2008 as well as dated 08.06.2010 and 04.03.2011. 4. The appeal filed by the assessee involves the issue of levy of penalty under section 271(1)(c) of the Act at ₹ 11,74,600/- by the Assessing Officer. The CIT(A) had enhanced penalty to ₹ 45,43,069/-. The assessee has also raised additional ground of appeal that the Assessing Officer had erred in levying penalty for concealment of income on both limbs of section 271(1)(c) of the Act without specifically invoking the same in show cause notices issued. 5. Briefly, in the facts of the case, Survey action under section 133A of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticulars of income within meaning of section 271(1)(c) of the Act. Therefore, he levied penalty at ₹ 11,74,601/-. The computation of penalty under section 271(1)(c) of the Act was as under:- (i) Tax on total income of ₹ 1,24,15,300/- : Rs.45,43,069/- (ii) Tax on income excluding concealed income (Rs.1,24,15,300 minus ₹ 32,09,950- = 92,05,350/-) : Rs.33,68,468/- (iii) Tax sought to be evaded (i ii) : Rs.11,74,601/- Minimum penalty leviable - 100% of tax sought to be evaded : R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on addition of ₹ 32 lakhs (approx.) on both the limbs. The CIT(A) has confirmed the same. He placed reliance on the ratio laid down by the Hon ble Bombay High Court in CIT Vs. Shri Samson Perinchery in Income Tax Appeal No.1154 of 2014 with other Income Tax Appeals Nos.953 of 2014, 1097 of 2014 and 1226 of 2014, judgment dated 05.01.2017. 9. The learned Departmental Representative for the Revenue placed reliance on the orders of authorities below and strongly opposed the arguments of learned Authorized Representative for the assessee. 10. We have heard the rival contentions and perused the record. The first jurisdictional issue raised by the assessee is against recording of satisfaction by the Assessing Officer and consequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 271(1)(c) of the Act were initiated for concealing particulars of income of ₹ 1,24,20,250/-. Thereafter, directions were given to issue notice under section 271(1)(c) of the Act. The CIT(A) in the quantum appeal deleted addition of ₹ 32,09,950/- and the returned income of ₹ 1.24 crores was assessed in the hands of assessee. The Assessing Officer while levying penalty under section 271(1)(c) of the Act for concealment was satisfied that the assessee has concealed income and furnished inaccurate particulars of income within meaning of said section. Consequently, penalty of ₹ 11,74,601/- was levied on concealed income. The Assessing Officer while computing penalty under section 271(1)(c) of the Act considered the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Bombay High Court in CIT Vs. Shri Samson Perinchery (supra). The learned Departmental Representative for the Revenue here strongly opposed the same and pointed out that penalty under section 271(1)(c) of the Act could be levied on both the limbs of said section. We find no merit in the plea of learned Departmental Representative for the Revenue in this regard, wherein the returned income was finally accepted by the CIT(A) / Tribunal and the protective addition made in the hands of assessee was deleted. Accordingly, we hold that penalty order passed in the case suffers from infirmity and the same is invalid in law. Accordingly, we direct the Assessing Officer to delete said penalty under section 271(1)(c) of the Act at ₹ 11,74 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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