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TMI Blog2018 (6) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... MEMBER For The Appellant : Shri D. K. Parikh, A.R. For The Respondent : Shri V. K. Singh, Sr. D.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the assessee against the appellate order of the Commissioner of Income Tax(Appeals)-3, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A)- 3/440/Wd.3(3)(2)/15-16 dated 26/10/2016 arising in the penalty order passed under s.271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) dated 31/12/2015 relevant to Assessment Year (AY) 2010-11. 2. The grounds of appeal raised by the assessee are as under:- 1. The Ld .CIT(Appeals) erred both in law and on facts in confirming the penalty of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the addition was made to the total income of ₹ 6,67,917/- only (15,48,100 - 9,95,988) on account of excess exemption claimed u/s 54F of the Act. The AO, in its assessment order framed u/s 143 (3) r.w.s 263 of the Act vide dated 27-07-2015 initiated the penalty proceedings u/s 271(1)(c) of the Act. The AO finally levied the penalty in its order dated 31-12-2015 for ₹ 1,13,734/- being 100% of amount of the tax sought to be evaded u/s 271(1)(c) of the Act. 5. Aggrieved, assessee preferred an appeal to learned CIT (A) who confirmed the order of the AO. 6. Being aggrieved by the order of learned CIT(A), assessee is in second appeal before us. The learned AR before us submitted as under: 2. Appellant sold l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and held that appellant committed default by furnishing inaccurate particulars of income / concealment of income. [Para 11 of penalty order] 6. Considering bonafide mistake of the counsel preparing return as submitted to CIT(A) due to similarity in both section 54 54F , the penalty ought not to be levied as held in the cases cited before CIT(A) ie. Sh Majrojit Singh vs ACIT ITA No: 1108/Chd/2011 (Attached EX-A), Shri Prabodhkumar Gupta vs A.O. ITA No: 1032/Chd/2012 (Attached EX-B) and Sarv Prakash Kapoor vs DCIT ITA No: 95(Agra) 2012 26 taxman.com 256 (Attached EX-C) . Ld CIT(A) did not consider the said decisions and observed that judgment from Jurisdictional ITAT or Gujarat High Court on the issue were not submitted. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout mentioning the specific charge in its penalty order dated 31/12/2015, whether, it was levied on account of concealment of income or on account of furnishing of inaccurate particulars of income. The relevant extract of the penalty order is reproduced as under: 11. In view of the above, on the basis of the facts and circumstances of the case, I am satisfied that the assessee has committed default u/s 271(1)(c) of the Act by way of furnishing of inaccurate particulars of income/concealment of income. It is held that the assessee is liable for penalty under section 271(1)(c) of the Act, it is therefore directed that the assessee shall pay by way of penalty in addition to the amount of tax. On perusal of above, it is clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of such income had been furnished by them. If no such clear cut finding is reached by the authority, penalty cannot be levied. It was a case in which in final conclusion the authority had recorded that I am of the opinion that it will have to be said that the assessee had concealed its income and/or that it had furnished inaccurate particulars of such income. It was in this respect the Bench observed that Now the language of and/or may be proper in issuing a notice as to penalty order or framing of charge in a criminal case or a quasicriminal case, but it was incumbent upon the IAC to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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