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TMI Blog2019 (2) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... of inaccurate particulars, when the details supplied by the assessee in return are not found to be incorrect or erroneous or false. v) That the Ld. CIT(A) has further erred both in law and on facts in imposing the penalty without considering submission of assessee and without granting any opportunity of being heard much less valid and proper opportunity and therefore the order made is contrary or principles of natural justice and hence a nullity. vi) That the Ld. CIT(A) has failed to appreciate the factual matrix of the case of the appellant and evidence on record and conclusions thus drawn mechanically are wholly unjustified. It is therefore, prayed that the penalty levied of Rs. 2,10,000/- u/s. 271(1)(c) of the Act and sustained by the Ld. CIT(A) may kindly be deleted. 2. Facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of brevity. 3. At the time of hearing, Ld. Counsel of the Assessee has stated that no specific show cause notice have been issued and also no satisfaction was recorded in the order of assessment and penalty levied is otherwise was without jurisdiction. In this regard he draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, if any to the show cause notice being issued to you on 25.7.2016 at 11.30 am. Please note that in case of your failure to file explanation on the date fixed for hearing, it will be presumed that you have no explanation to offer and the penalty proceedings shall be finalized on the basis of material available on records and on merits of the case...." 5.1 We further note from para no. 2 at page no. 1 of the Penalty Order dated 20.03.2017 and found that AO has himself written that "Penalty Proceedings u/s. 271(1)(c) on account of furnishing inaccurate particulars of income was initiated alognwith the assessment order and notice issued to the assessee." and subsequently vide para no. 4 at page no. 4 (last page) of the same penalty order he has written that "In view of the above, it is clear that the assessee company has deliberately concealed particulars of income to the extent of Rs. 7,00,000/-". Therefore, in my considered opinion, the AO is not clear under which charge the penalty is leviable i.e. whether it is on account of concealment of income or furnishing of inaccurate particulars. Hence, I am of the view that the AO has initiated the penalty for concealment of particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e...". After perusing the notice dated 26.3.2013 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 or concealment of income as well as in the penalty order dated 30.9.2013 AO has stated that he is satisfied that the assessee has concealed particulars of his income, which is contrary to law. In view of above, 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 Meadows - 2015 (11) TMI 1620 - Karnataka High Court has held that Tribunal has correctly allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer 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)(c) 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. 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 Cott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 26,50,500/- and did not declare in the return of income inspite of admitting a disclosure of Rs. 40,00,000/- during survey. Thus, the appellant has furnished inaccurate particulars of his income. The facts of the case clearly reveal that the appellant tried to evade payment of taxes by furnishing inaccurate particulars of income. Therefore, I hold that the AO was fully justified in levying the penalty u/s. 271(1)(c) of the Act. The penalty levied by the AO is upheld. This ground of appeal is rejected." 8. Keeping in view of the aforesaid finding of the Ld. CIT(A), we are of the considered view that the AO has passed the assessment order wherein the AO has recorded his satisfaction on the page 2, 2nd para viz. "I am satisfied that it is a fit case for initiation of penalty proceedings u/s. 271(1)(c) of the Act for furnishing inaccurate particulars of income/concealment of income." Further the AO vide his Notice da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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