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TMI Blog2018 (4) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1409/Del/2015 - - - Dated:- 26-4-2018 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Assessee : Sh. Ananya Kapoor, Adv. Sh. Sumit, Adv. For The Department : Sh. Ravi Kant Gupta, Sr. DRa ORDER PER H.S. SIDHU, JM This appeal by the Assessee is directed against the Order of the Ld. Commissioner of Income Tax (Appeals)-35, New Delhi dated 16.1.2015 pertaining to assessment year 2008-09. 2. The assessee has raised as many as 10 grounds relating to levy of penalty, but the Ld. Counsel of the assessee has only argued the following legal ground no. 4:- That in the absence of any specific charge, the initiation of levying of penalty u/s. 271(1) is illegal, bad in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... especially the orders of the revenue authorities alongwith the provisions of law as well as the case law cited by the Ld. Counsel of the Assessee. We have perused the Notice dated 31.03.2010 issued by the AO for initiation of penalty and directing the assessee to appear before him. For the sake of convenience, some of the contents of the penalty Notice dated 31.03.2010 are reproduced as under:- .. it appears to me that you:- * have without reasonable cause failed to comply with a notice under section 142(1)/143(2) of the Income Tax Act, 1961 dated .. * have concealed the particulars of your income or furnished inaccurate particulars of such income in terms of explanation 1, 2, 3, 4, 5 . .. 6.1 After perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is covered by judgment of the Division Bench of this Court, we are of the opinion no substantial question of law arises decided in favour of assessee. ii) CIT Anr. Vs. M/s SSA s Emerald Meadows Hon ble Supreme Court of India reported in 2016 (8) TMI 1145 Supreme Court. The Apex Court held that High Court order confirmed (2015) (11) TMI 1620 (Supra) Karnataka High Court. Notice issued by AO under section 274 read with section 271(1)(c) to be bad in law as it did not specify which limb of Section 271(1) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income Decided in favour of assessee. iii) ITAT, A Bench, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee, has relied on the decision of the Division Bench of this Court rendered in the case of Commissioner of Income Tax vs. Manjunatha Cotton and Ginning Factory (2013) (7) TMI 620- Karanataka High Court. Thus since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion no substantial question of law arises decided in favour of assessee. ii) CIT Anr. Vs. M/s SSA s Emerald Meadows Hon ble Supreme Court of India reported in 2016 (8) TMI 1145 Supreme Court. The Apex Court held that High Court order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be made u/s. 271(1)(c) of the I.T. Act, 1961. After perusing the notice dated 31.12.2007 issued by the AO to the assessee, we are of the view that the AO has initiated the penalty for furnishing inaccurate particulars of income/concealment of income, but in the penalty order dated 06.11.2009 he has stated that he is satisfied that the assessee has furnished the inaccurate particulars of income. 7.1 However, the Ld. CIT(A) has given clear finding regarding the furnishing of inaccurate particulars. For the sake of convenience, the relevant para no. 5.3.1 of the impugned order passed by the Ld. CIT(A) is reproduced as under:- 5.3.1 The above findings of the Ld. CIT(A) clearly establishes that the appellant has concealed the income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied that the assessee has furnished the inaccurate particulars of income. In our view the penalty in dispute is not sustainable in the eyes of law, because the AO has not recorded any clear finding whether the assessee was guilty of concealment of income or furnishing of inaccurate particulars of income. Secondly, the notice u/s. 271(1)(c) has been issued to the assessee levying the penalty for furnishing of inaccurate particulars of income/concealment of income, whereas the penalty in dispute has been levied by the AO on account of furnishing of inaccurate particulars. In our view the penalty is not sustainable in the eyes of law. Our aforesaid view is fortified by the following decisions:- i) CIT Anr. Vs. M/s SSA s Emerald ..... X X X X Extracts X X X X X X X X Extracts X X X X
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