9911796707
TMI Blog2019 (6) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of assessee on 26.02.2009. The due date for filing return of income for AY 2008-09 was 31.10.2008. On the date of survey, the assessee had not filed return of income for AY 2008-09. In the course of survey it was noticed by the Officer conducting the survey that assessee had not deducted tax at source on expenditure to the tune of Rs. 30,09,087 on which tax was deductible as per the provisions of Chapter XVIIB of the Act. It was also noticed at the time of survey that there were expenditure to the tune of Rs. 28,94,491 which were incurred in cash above the limits specified u/s. 40A(3) of the Act and was therefore liable to be disallowed (not allowable as deductible expenditure in computing income from business). 3. Since the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the assessee filed a letter dated 03.06.2019 withdrawing the appeal of assessee. The appeal of the assessee is accordingly dismissed as withdrawn. ITA 316/Bang/2017 6. We have already seen that in the assessment concluded for AY 2008-09 and the order dated 29.12.2009 passed u/s. 143(3) r.w.s. 147 of the Act that the AO accepted the income returned by the assessee, but nevertheless initiated penalty proceedings against the assessee for furnishing inaccurate particulars of income in respect of disallowance of expenses u/s. 40(a)(ia) and 40A(3) of the Act. The AO issued a show cause notice u/s. 274 of the Act for imposing penalty on the assessee u/s. 271(1)(c) of the Act. It is the case of the revenue that but for the survey u/s. 133A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Hon'ble High Court of Karnataka in the case of CIT v. Manjunatha Cotton & Ginning Factory, 359 ITR 565 (Kar) wherein it was held that when show cause notice imposing penalty does not specifically state that the ground on which penalty is sought to be levied viz., as to whether it is for furnishing inaccurate particulars of income or for concealment of income, the order imposing penalty is liable to be held as invalid. The ld. counsel for the assessee also brought to our notice the decision of ITAT Bangalore Bench in the case of Vasavi Shelters in ITA Nos.499 & 500/Bang/2012 dated 22.2.2013 wherein the Tribunal on identical facts such as the case of assessee in the present appeal held that there should be no imposition of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y can be imposed unless the conditions stipulated in the said provisions are duly and unambiguously satisfied. Since the assessee was exposed during survey, may be, it would have not disclosed the income but for the said survey. However, there cannot be any penalty only on surmises, conjectures and possibilities. Sec. 271(1)(c) has to be construed strictly. Unless it is found that there is actually a concealment or non-disclosure of the particulars of income, penalty cannot be imposed. There is no such concealment or non- disclosure as the assessee had made a complete disclosure in the IT return and offered the surrendered amount for the purposes of tax." 8. The ld. DR relied on the order of CIT(Appeals). 9. We have considered the rival s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the above, we also find that the show cause notice (at pages 31 & 32 of PB) issued by the AO before imposing penalty does not specify the charge against the assessee for which the penalty is sought to be imposed viz., as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. In the circumstances, the decision of the Hon'ble High Court of Karnataka in the case of Manjunatha Cotton & Ginning Factory (supra) will apply and imposition of penalty has to be held to be not sustainable in view of the aforesaid decision. We therefore hold that penalty imposed u/s. 271(1)(c) of the Act is not sustainable and the same is directed to be cancelled. 12. In the result, ITA No.316/Bang/2017 is allowed, whil ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
