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TMI Blog2018 (5) TMI 1847X X X X Extracts X X X X X X X X Extracts X X X X ..... tually incorrect hence prima facie assessee could not be held guilty for furnishing inaccurate particulars. Therefore, in this case the claim of the assessee was partly allowed by the CIT(A) and Tribunal has submitted the finding of CIT(A). Therefore, we are of the view that CIT(A) has rightly justified in following the decision of RELIANCE PETROPRODUCTS PVT. LTD. [2010 (3) TMI 80 - SUPREME COURT]. Whenever there is a debatable issue the penalty cannot be levied. - Decided in favour of assessee. Penalty under which limb - disallowance of prior period expenses - A.Y.2003-04 - AO not specified as to which limb of the penalty notice was invoked i.e. either for concealment of income or furnishing of inaccurate particulars of such income - no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of assessee. - ITA.No. 1592 And 1593/MUM/2016 - - - Dated:- 31-5-2018 - SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER For The Assessee : Ms. Krupa R. Gandhi And Ms. Manshi Padhiar For The Revenue : Shri M.V. Rajguru ORDER PER C.N. PRASAD (JM) 1. These two appeals are filed by the Revenue against different orders of the Ld. Commissioner of Income-tax (Appeals)-8, Mumbai dated 29.12.2015 and 31.12.2015 in sustaining the penalty levied u/s. 271(1)(c) of the Act for the Assessment Years 2002-03 and 2003-04. 2. At the outset, Learned Counsel for the assessee submitted that for the Assessment Year 2002-03 penalty was levied on the disallowance partly sustained by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come, assessee has disclosed all the facts in his return of income. As per the decision of Reliance Petroproducts (P) Ltd. (supra) we find that for penalty for concealment of income if the assessee has made a claim of expenditure which was not accepted or was not acceptable to revenue by disallow not attract the penalty u/s 271(1)(c) of the Act for imposing the penalty there has to be concealment of particulars of income of the assessee secondly assessee must for furnish inaccurate particulars of this income. It is admitted fact that no information given in the return of assessee was found to be incorrect or inaccurate. The statement given by the assessee was not found to be factually incorrect hence prima facie assessee could not be held g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that initiation of the penalty proceedings itself is bad in law as it was not specified as to which limb of the penalty notice was invoked i.e. either for concealment of income or furnishing of inaccurate particulars of such income. It is submitted that the charge for which the penalty was invoked is not specified. Referring to copy of notice placed at Page No. 45 of the Paper Book counsel submitted that the irrelevant portion of the charge was not stricken off and therefore the initiation of penalty proceedings is bad in law. It is submitted that there is no application of mind by the Assessing Officer and the penalty was initiated without application of the mind in mechanical manner. 7. Coming to the merits of the issue, it is submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither for concealment of income or for furnishing inaccurate particulars of income by striking off the irrelevant portion of the charge in the notice issued u/s. 274 r.w.s. 271(1)(c) of the Act. We also find from the Assessment Order that the Assessing Officer except stating that penalty proceedings u/s. 271(1)(c) is being initiated, he has not mentioned as to on what charge the penalty proceedings are initiated i.e. either for concealment of income or for furnishing inaccurate particulars of income. In the case of Orbit Enterprises v. Income Tax Officer [60 ITR (Trib.) 252] the Mumbai Bench of the Tribunal considered identical situation. The Tribunal considering the decision of the Hon'ble Jurisdictional High Court in the case of CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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