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TMI Blog2019 (5) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer, ignoring the fact that assessee had filed its return of income including additional income declared during the survey u/s. 133A after issue of notice u/s. 148 of the IT Act,1961. 2. On the facts and in the circumstances of the case and in law, the CIT(A) was not justified in deleting the penalty u/s. 271 (1)(c) levied by the AO, following the decision of ITAT, Pune Bench in the case of Dilip Yeshwant Oak (2011) 010 taxman.com 264, by not considering the fact that the facts of both the cases are distinguished. 3. The appellant prays that the order of the CIT(A) be vacated and that order of the Assessing Officer may be restored. 4. The appellant craves leave to add, alter, amend or modify the above grounds raised, any other grounds at the time of proceedings before the Hon'ble Tribunal which may kindly be granted." 3. Ground nos.3 and 4 raised by the Revenue in the appeals for the assessment years 2008-09 and 2010-11 are general. Therefore, the ground nos.3 and 4 are dismissed in both the appeals. 4. The effective ground nos.1 and 2 raised by the Revenue in both the appeals for the assessment years 2008-09 and 2010-11 relating to the penalty u/s 271(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsite maintained by the Sales Tax Department of Maharashtra Government. During the survey action, the assessee offered the said purchases as additional income of the assessee and the same became final in the reassessment itself. It is undisputed fact that the assessee paid relevant taxes and the entries obviously apparent on the face of the books of account of the assessee and the return of income is evidenced in this regard. Further, mentioning that the entries are apparent out of the books of account/returns of income and in that case the Assessing Officer cannot initiate the penalty proceedings for the default of concealment of income as no income is concealed. The fact of claim of bogus purchases is evident on the face of the books of account/bank statements/returns of income of the assessee is right limb that could have been invoked in this case should be the furnishing of inaccurate particulars of income and not concealment of income. The onus uses by the Assessing Officer in the reassessment order as well as in the penalty order is fully objectionable and there is no consistency as evident from the relevant paragraphs extracted above. Further ld. Counsel submitted that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra), it is evident that the issue is very much identical to the issue of the present appeals, which is for adjudication before us. In the case of bogus purchase, the correct charge/correct limb should have been the one relating to the default of furnishing of inaccurate particulars of income and not the concealment of income as the bogus purchases are very much recorded in the books of account. 10.1 Considering the above, we are of the opinion, the penalty levied by the Assessing Officer in both the appeals are unsustainable on legal issue. Therefore, we find the orders of the CIT(A) in both the years are fair and reasonable and they do not call for any interference. Accordingly, the grounds raised by the Revenue for both the assessment years i.e. A.Y. 2008-09 and 2010-11 stands dismissed on technical ground. Considering the relief, we find it inappropriate to adjudicate the issue on the merits of the penalty. Accordingly, the grounds are dismissed as academic. 11. In the result, both the appeals of the Revenue in ITA Nos.2731 & 2732/PUN/2016 are dismissed. ITA No.2733/PUN/2016 (A.Y. 2012-13) 12. The grounds raised by the Revenue in this appeal are as under :- "1. On the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue was dismissed by the Tribunal rejecting the arguments of the ld. DR in that case. The contents of para 10 and 11 are relevant in this regard. For the sake of completeness of this order, the said para 10 and 11 are extracted hereunder :- "10. We have heard the rival contentions and perused the record. The issue which arises in the present appeal is the allowability of deduction under section 80IA(4)(iv)(a) r.w.s. 80IA(5) of the Act. The assessee had set up first windmill in assessment year 2006-07 and the second windmill in assessment year 2007-08. In the initial years, there were losses from windmill activity. The assessee was simultaneously carrying on business of civil construction, from which the assessee was making profits. The said losses were adjusted against the income arising from other business activity of the assessee. For the first time, the windmill activity had shown profit in assessment year 2010-11 and the assessee claimed deduction under section 80IA(4) of the Act. The said year i.e. assessment year 201011 was the initial assessment year for claim of deduction under section 80IA(4) of the Act. The CIT(A) at page 22 has given a finding that there were no brou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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