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TMI Blog2019 (8) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed the rental income and the interest on housing loan on wrong facts. Therefore, to this extent we do not find any merits in the case of the assessee that the claim was bonafide, though, not allowed by the revenue authorities and, therefore, the penalty levied u/s. 271 (1) (c ) of the Act should be deleted. Penalty notice did not specify under which limb of the section the penalty proceedings have been initiated - This issue was never raised before the first appellate authority and has been raised for the first time before the Tribunal. We agree with the DR that the question whether correct limb has been applied is a question of fact and not a question of law. As decided in SUNDARAM FINANCE SERVICES LTD.) VERSUS THE ASSISTANT C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard together and are disposed of by this common order for the sake of convenience. 2. In both the appeals the common grievance is that the CIT(A) erred in confirming the penalty levied u/s. 271 (1) (c) of the Act. Since under lying facts in the issues are common, we deem it fit to dispose both the appeals by this common order for the sake of convenience and brevity. 3. While disposing these appeal we have considered the facts of ITA No.5434/Del/2016. 4. The roots for the levy of penalty lie in the assessment order dated 23.12.2011 framed u/s. 153 A r.w.s 143 (3) of the Act. 5. While scrutinizing the return of income the Assessing Officer found that the assessee has shown rental income of ₹ 60,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter before the CIT(A) but without any success. 11. For the first time before us the counsel for the assessee questioned the validity of the penalty notice which is at page 1 of the paper book. It is the say of the counsel that the Assessing Officer has not specified under which limb of section 271 (1) (c ) of the Act the penalty has been levied. For this proposition reliance was placed on various judicial decisions. 12. Arguing on the merits of the case the counsel stated that there are ample evidence to show that a residential house was purchased for which loan was sanctioned by ICICI bank and therefore, the claim of the assessee is genuine which requires no levy of penalty u/s. 271 (1) (c) of the Act. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2005. These facts are mentioned on the copy of the sale deed itself which is placed at pages 50-52 and these findings also support findings of Ld. CIT(A). ICICI Bank disbursed tire amount of ₹ 32 lacs on 31.12.2005 which is apparent from paper book page 63 where a copy of letter issued by ICICI bank is placed. Therefore, the loan taken by assessee from ICICI bank cannot be said to be taken for the purpose of purchase of the said property as the said property was already purchased on 25.11.2005 and full payment of consideration was already paid as is apparent from the copy of the sale deed. One of the factors which was taken into account by Ld, CIT(A) is that assessee had not utilized borrowed funds for acquisition of property. Thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the. assessee and the order of Ld. CIT(A) is confirmed. 15. A perusal of the order of the Tribunal (supra) clearly establishes that the assessee had claimed the rental income and the interest on housing loan on wrong facts. Therefore, to this extent we do not find any merits in the case of the assessee that the claim was bonafide, though, not allowed by the revenue authorities and, therefore, the penalty levied u/s. 271 (1) (c ) of the Act should be deleted. 16. Coming to the plea taken for the first time before us that the penalty notice did not specify under which limb of the section the penalty proceedings have been initiated. In our considered opinion this issue was never raised before the first appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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