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TMI Blog2019 (6) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to profit earned on such unaccounted sales which has been confirmed by the CIT(A) and the Tribunal. There is no dispute with regard to the concealment of income and furnishing of inaccurate particulars of income, in so far as the addition has been upheld up to the last extent. It has not been shown by the ld AR as to whether the order of the Tribunal in quantum appeal was challenged before the Hon ble High Court and the Hon ble High Court has accepted substantial questions of law so as to suggest that it is debatable issue. The penalty has been levied with reference to the incriminating material found during the course of survey which indicated exact amount of unaccounted sales. These unaccounted sales have been confirmed both by the CIT(A) and the Tribunal. A.O. has levied penalty only with respect to profit earned on these unaccounted sales which has not been disclosed in the return of income. Accordingly, it cannot be said that the penalty was levied with reference to estimation of income. Accordingly, we do not find any infirmity in the penalty so imposed. We are inclined to agree with the DR Shri Ashok Khanna that the A.O. was justified in imposing penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of account and other relevant materials, the A.O. found that the assessee has made unaccounted sales of ₹ 13,37,586/- (21,16,592-7,79,306), this sale pertains to the assessment year under consideration. The A.O. further observed that no supporting evidences in this regard were also furnished by the assessee. Considering the facts and circumstances of the case and to meet end of natural justice, the A.O. made addition with respect to profit earned on such unaccounted sales. The A.O. also levied penalty U/s 271(1)(c) of the Act in so far as the addition has been confirmed by the ld. CIT(A) as well as the Tribunal. By the impugned order, the ld. CIT(A) has confirmed the action of the A.O. for levy of penalty, against which the assessee is in further appeal before us. 3. It was argued by the ld. AR of the assessee that the penalty proceedings in the case of assessee were specifically initiated for furnishing inaccurate particulars of income as has been evident from the perusal of the assessment order at page 10 para 1. However, while imposing the penalty, ld. AO has recorded the conclusion that assessee has concealed the income in addition to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Tribunal, therefore, there is no infirmity in the order of the A.O. in levying the penalty U/s 271(1)(c) of the Act with regard to addition so made. 8. The ld. DR has also contended that the A.O. has correctly levied penalty with reference to the income concealed and inaccurate particulars furnished by the assessee, accordingly, the penalty so levied cannot be cancelled on technical ground. With regard to merit of the penalty so imposed, he contended that the penalty was not imposed with reference to any estimation of income but was on the basis of concrete material and incriminating documents found during the course of survey which lead to the precise amount of unaccounted sales made by the assessee out of books of account and on which the A.O. has computed profit which has escaped assessment by failure of assessee to file inaccurate particulars of income. 9. We have considered the rival contentions and carefully gone through the orders of the authorities below. We had considered the written submissions dated 26/03/2019 filed by the assessee wherein various judicial pronouncements were relied upon. We had deliberated upon all these judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O cannot initiate penalty on the charge of 'concealment of particulars of income', but ultimately find the assessee guilty in the penalty order of 'furnishing inaccurate particulars of income'. In the same manner, he cannot be uncertain in the penalty order as to concealment or furnishing of inaccurate particulars of income by using slash between the two expressions. When the AO is satisfied that it is a clear-cut case of 'furnishing of inaccurate particulars of income', he must again specify it so in the notice at the time of initiation of penalty proceedings and also in the penalty order. After initiating penalty on the charge of 'furnishing of inaccurate particulars of income', he cannot impose penalty by finding the assessee guilty of concealment of particulars of income'. Again, he cannot be uncertain in the penalty order as to concealment or furnishing of inaccurate particulars of income by using slash between the two expressions. When the AO is satisfied that it is a clear-cut case of imposition of penalty u/s 271(1)(c) of the Act on two or more additions/disallowances, one or more falling under the expression 'concealment of particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing penalty U/s 271(1)(c) of the I.T. Act. Therefore, I hereby confirm penalty U/s 271(1)(c) of ₹ 1,28,128/- @ 100% of tax sought to be evaded. 14. It is clear from the above that both at the time of initiation of penalty by issuance of notice as well as at the time of imposing the penalty U/s 271(1)(c), the charge of the A.O. was same i.e. concealment of income and also for furnishing inaccurate particulars of income . Thus, there is no variation in the charge for levy of penalty and show cause notice issued for levy of penalty. Accordingly, the proposition laid down by the Coordinate Bench in the case of HPCL Mittal Energy Ltd. Vs ACIT (supra) will not help the assessee so as to persuade us to cancel the penalty so imposed. Accordingly, we hold that the penalty has been correctly levied in so far as the charge for initiation of penalty as well as charge while levying the penalty was same. Thus, we do not find any merit in the contention of the ld AR. 15. With regard to merit of penalty so imposed U/s 271(1)(c) of the Act, we found that there was survey at the business premises of the assessee wherein on the basis of incriminating d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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