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TMI Blog2018 (6) TMI 1676X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax Act, 1961 (here-in-after referred to as "the Act") dated 24/09/2015 relevant to Assessment Year (AY) 2012-13. 2. The assessee has raised the following grounds of appeal : "1.1 The order passed u/s. 250 on 25-10-2016 for A.Y. 2012-13 by CIT(A)-10, Abad, upholding penalty u/s 271(1)(c) on the income of Rs. 8,19,964/- is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has failed to appreciate that the AO had imposed penalty alleging both the defaults of concealment of income as well as furnishing inaccurate particulars of income though the same is distinct and separate defaults. Hence, the impugned order of penalty is illegal and unlawful as held in case of New Sorathiya Engineering (24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property was valued for stamp duty purpose at Rs. 44,89,249/- only. Accordingly, the AO worked out a long-term capital gain at Rs. 28,09,213/- after taking the sale consideration of Rs. 44,89,249/- only. As the assessee has not disclosed its income under the head capital gain, therefore, the entire amount of capital gain for Rs. 28,09,213/- was added to the total income of the assessee. The AO in its assessment order dated 19-03- 2015 also initiated the penalty proceedings u/s 271(1)(c) of the Act on account of non-disclosure of capital gain in the income tax return. Subsequently, the AO show-caused the assessee u/s 274 r.w.s. 271(1)(c) vide dated 19-03-2015 for levying the penalty. The assessee in compliance to it submitted that she ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by observing as under: "During the course of appeal proceedings, it has been stated by the AR of the appellant that the difference in the capital gains is on account of sales consideration and the valuation as per 50C of the Income Tax Act which is not factually correct. The difference on account of 50C valuation is only to the extent of Rs. 19,89,249/- and not Rs. 28,09,213/- as has been claimed by the appellant. All the submissions made by the appellant during the course of appeal proceedings are on the issue of valuation as per section 50C of the Act. The appellant has not made any submissions whatsoever for nondisclosure of capital gains of Rs. 8,19,964/- in the original return of income. Therefore, the submissions made by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has not shown capital gains while filing the return of income or in the statement of income despite the very-well fact that the assessee has sold capital asset during the year under consideration, the assessee has willfully and deliberately did not show Long Term Capital Gain income "with an intention to conceal income only". Therefore, there is a clear cut finding by the AO that the penalty is being levied for concealment of income as far as the income of Rs. 8,19,964/- from Long Term Capital Gain on the original sale consideration is concerned. In view of the above, the penalty is confirmed to extent of Rs. 8,19,964/-. The AO is directed to re-compute the penalty amount accordingly. The penalty is deleted on an amount of Rs. 19, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: "4. Considering the facts and circumstances of the case as discussed above, I am of the opinion that this is a fit case for levy of penalty u/s 271(1)(c) of the Act for concealment of income by way of furnishing of inaccurate particulars of income as well as concealment particulars of income. " On perusal of above, it is clear that the AO has not levied the penalty on the specific charge as mandated u/s 271 (1)(c) of the Act. In such facts and circumstance the Hon'ble Jurisdictional High Court in the case of Snita Transport Pvt. Ltd. Vs. Assistant Commissioner of Income Tax reported in 42 taxmann.com 54 has held that penalty cannot be imposed without mentioning the specific charge. The relevant extract of the order is reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at "Now the language of "and/or" may be proper in issuing a notice as to penalty order or framing of charge in a criminal case or a quasicriminal case, but it was incumbent upon the IAC to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by the assessee. No such clear cut finding was reached by the IAC and, on that ground alone, the order of penalty passed by the IAC was liable to be struck down." 7. The principles laid down by the Hon'ble Jurisdictional High Court in the above case are squarely applicable to the facts of the case on hand. The AO has not mentioned the specific charge in its penalty orders whether it was levied f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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