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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 ..... eserves to be deleted. 2. On the facts and in the circumstances of the case the Ld. CIT(A) has grossly erred in confirming penalty of Rs. 1,28,128/- levied u/s 271(1)(c) of the Income Tax Act, 1961 on the additions of Rs. 4,14,652/- made by Ld. AO, alleging the same as unaccounted sales arbitrarily solely relying upon conclusions drawn in assessment proceedings though penalty proceedings are separate and distinct proceedings, thus the penalty so confirmed deserves to be deleted. 3. The appellant craves the right to add, delete or amend any of the grounds of appeal either before or at the time of hearing of appeal." 2. Rival contentions have been heard and record perused. The facts in brief are that the assessee is engaged in the business of manufacturing and trading of pillars & slabs of sand stones. In this case, survey U/s 133A of the Act was carried out on 18/03/2008 at the business premises of the assessee. During the course of survey proceedings, certain incriminating documents/loose papers diary/bills etc. were found and impounded. After considering the assessee's reply and after perusing the impounded material as well as books of account and other relevant materials, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO while initiating penalty proceedings u/s 271(1)(c) of the I T Act is with regard to alleged 'concealment of income' by the assessee, whereas imposition of penalty is for 'Concealment/ furnishing inaccurate particulars of income', the levy of penalty is not sustainable. 6. The ld. AR has further argued that the estimated addition has been made for which no penalty is leviable. He further contended that the papers found during the course of survey contained rough calculation/estimation of measurement, or belonged to some other parties and did not reflect any unaccounted sales of the assessee. Thus, the penalty levied with reference to the profit computed at 31% on unaccounted sales is purely on estimation basis for which no penalty is leviable. 7. On the other hand, the ld DR has relied on the orders of the authorities below and contended that unaccounted sales so found during the course of survey in terms of incriminating material was confirmed by both i.e. by the ld. CIT(A) and the 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by issue of notice U/s 274 r.w.s. 271(1)(c) vis a vis charge levied in the penalty order U/s 271(1)(c) of the Act, the precise observation of the Tribunal was as per para 15 which reads as under: "15. The moot question is that what should be the nature of specification of a charge by the AO at the stage of initiation of penalty proceedings and at the time of passing the penalty order. Is the AO required to specify in the penalty notice/order as to whether it is a case of 'concealment of particulars of income'; or 'furnishing of inaccurate particulars of income'; or both of them, which can be expressed by using the word 'and' between the two expressions. When the AO is satisfied that it is a clear-cut case of concealment of particulars of income, he must specify it so in the notice at the time of initiation of penalty proceedings and also in the penalty order. The AO 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not leviable. 13. Now we consider the facts of the instant case with reference to the judicial pronouncements discussed hereinabove, we found that for initiating the penalty the A.O. has issued notice U/s 274 r.w.s. 271(1)(c) of the Act on 20/12/2010 for "concealment and furnishing of inaccurate particulars of his income". This fact has been mentioned by the A.O. at page 1 of penalty order dated 18/3/2015 and the same was not disputed by the ld AR by bringing any positive material on record. Thereafter considering the assessee's contention, the A.O. has passed penalty order U/s 271(1)(c) on 18/03/2015 wherein the penalty was levied after having the following observation: "In view of the above discussion, the assessee has concealed his income and also furnished inaccurate particulars of his income. Thus, it is a fit case for imposing penalty U/s 271(1)(c) of the I.T. Act. Therefore, I hereby confirm penalty U/s 271(1)(c) of Rs. 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. "con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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