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TMI Blog2017 (12) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... d. assessing officer is vague, ambiguous and not specific. In view of this we cancel the penalty levied by the Ld. assessing officer and confirmed by the Ld. CIT (A) of ₹ 222142/– under section 271 (1) (C) of the act. In the result solitary issue raised in the appeal of the assessee is allowed. - ITA No. 6690/Del/2015 - - - Dated:- 22-11-2017 - SHRI H.S.SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Assessee : Shri Aasish Bhatia, Adv For The Revenue : Shri. Kaushlendra Tiwari, Sr. DR ORDER PER PRASHANT MAHARISHI, A. M. 1. This appeal is preferred by the assessee against the order of the Ld. Commissioner of income tax appeals 4, New Delhi dated 9/11/2015 for assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant s submission that penalty cannot be levied in respect of issues material to computation of tax under normal provisions in case where assessment has been completed under the provisions of Section 115JB at returned income thereby rendering penalty proceedings non-est in law. 2. Though assessee has raised almost 4 grounds of appeal, however, the main contest remains against the penalty levied by the Ld. assessing officer and confirmed by the Ld. CIT (A). 3. The brief issue involved is that assessee is a company, which is engaged in the business of trading of non-calling beverages. It filed its return of income on 30/9/2011 declaring total loss of ₹ 2665360/ . The assessment under section 143 (3) of the act was passed on 20/3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for income on the same. Therefore, the Ld. assessing officer as per para No. 12 of his order held that assessee company is in default for furnishing inaccurate particulars of its income and also for concealing its income for the year under consideration in terms of provisions of section 271 (1)(c) read with explanation 1 (B) and for this default penalty was levied of ₹ 222142/-. 5. On appeal before the Ld. CIT (A). The above penalty was confirmed. The Ld. CIT (A) is that the appellant did not offer the disallowance voluntarily particulars only. On being asked twice that assessee came forward with the breakup of the bad and doubtful advances. Therefore, assessee aggrieved with the order of the Ld. CIT appeal is preferred an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities have rightly proceeded on the issue. 8. We have carefully considered the rival contention and also perused the orders of the lower authorities. It is apparent that in the assessment order, while making disallowance/addition, the Ld. assessing officer has initiated penalty proceedings for furnishing of inaccurate particulars of income. The assessee replied to this notice. However, in the assessment order as per para No. 12. The Ld. Assessing Officer has levied the penalty for concealment of income as well as for furnishing of inaccurate particulars of income. Undisputedly, both these charges are generally and in most of the cases mutually exclusive. Therefore, on conjoint readings of the assessment order as well as the penalty order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot applicable to the orders passed by the Commissioner of Income-tax (Appeals) and the Commis sioner. ( i) The imposition of penalty is not automatic. ( j) The imposition of penalty even if the tax liability is admitted is not automatic. ( k) Even if the assessee has not challenged the order of assessment levying tax and interest and has paid tax and interest that by itself would not be sufficient for the authorities either to initiate penalty proceedings or impose penalty, unless it is discernible from the assessment order that, it is on account of such unearthing or enquiry concluded by the authorities it has resulted in payment of such tax or such tax liability came to be admit ted and if not it would have escaped fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such proceedings, no penalty could be imposed to the assessee. ( s) Taking up of penalty proceedings on one limb and finding the assessee guilty of another limb is bad in law. ( t) The penalty proceedings are distinct from the assessment proceedings. The proceedings for imposition of penalty though emanate from proceedings of assessment, it is independent and separate aspect of the proceedings. ( u) The findings recorded in the assessment proceedings insofar as concealment of income and furnishing of incorrect particulars would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the said proceedings on the merits. However, the validity of the assessment or reassessment in p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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