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TMI Blog2020 (3) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... couple of occasions earlier as well. It was therefore decided to hear the matter ex-parte qua the assessee based on material available on record. 3. Briefly the facts of the case are that assessment in this case was completed U/s 143(3) on 13.03.2018 wherein the addition of Rs. 56,30,000/- was made U/s 69 of the Act as the said amount was found deposited in the assessee's bank and no satisfactory explanation was furnished by the assessee. On appeal, the addition has since been confirmed by the Coordinate Bench (vide its order dated 08.12.2017 in ITA No. 909/JP/2019) and the relevant finding reads as under:- "4. In view of these factual aspect and absence of any document in support of claimed of assessee that she was a sub-broker and cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee vide her letter 31.01.2018 has submitted that due to heavy losses sustained by all/maximum parties, details as per chart; the business was later closed. Thus the assessee was only doing the trade as "SUB - BROKEERS" and the operations/transactions as made with M/s Sisodiya Future, Ajmer was mainly of clients/persons. A sworn affidavit of assessee dated 20.01.2005 was also submitted to A.O. stating the aforesaid facts. The lady was also interrogated personally u/s 131 & she narrated the same to A.O. as confirmed by A.O. in his order. All the said persons were also summoned by A.O. u/s 131 of Income-tax Act, 1961 & all appeared before A.O. & accepted the facts that transactions of sale/purchase at MCX/NCDEX were through M/s Pank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied that any person- has concealed the particulars of his income or furnished inaccurate particulars of [of such income, or]." As per the provision of section 271(1)(c) of the IT Act 1961, the penalty u/s 271(1)(c)of the 1.T. Act, 1961 "in the cases referred to in clause (c)[in addition to tax, if any, payable] by him, a sum which shall not be less than, but which shall not exceed [three times], the amount of tax sought to be evaded by reason of the concealment of particulars of his income [or fringe benefits] or the furnishing of inaccurate particulars of such income[or fringe benefits]." (i) The income assessed after effect of Hon'ble ITAT order. Rs. 58,12,390/- (ii) Tax & Cess determined on above income. Rs. 16,42,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessarily be substituted with a conclusive default at the time of passing the penalty order. In this regard, we refer to the decision of Hon'ble Rajasthan High Court in case of Sheveta Construction Co. Pvt. Ltd. vs. ITO (in DB No. 534/2008 vide order dated 06.12.2016) wherein it was held as under:- "4. From the order of assessment, the Assessing Officer has used the language as under:- "Penalty proceedings under section 271(1)(c) for concealment of income/furnishing of inaccurate particulars of income have been initiated separately. 5. Counsel for the appellant relied upon the decision of Andhra Pradesh High Court in case of Chennakesava Pharmaceuticals vs. Commissioner of Income Tax reported in (2012) 349 ITR 196, wherein it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in case of Dilip N. Shooff vs. Joint Commissioner of Income Tax & Anr. (2007) 291 ITR 519 (SC) it has been held as under:- "It is of some significance that in the standard proforma used by the Assessing Officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not been done. Thus, the Assessing Officer himself was not sure as to whether he had proceeded on this basis that the assessee had concealed his income or he had furnished inaccurate particulars. Even before us, the learned Additional Solicitor General while placing the order of assessment laid emphasis that he had dealt with both the situations. The impugned order, therefore, suffers fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of Assessing Officer in the assessment order it is held that the AO has to give a notice as to whether he proposes to levy penalty for concealment of income or furnishing inaccurate particulars. He cannot have both the conditions and if it is so he has to say so in the notice and record a finding in the penalty order. 10. In that view of the matter, the issue is answered in favour of the assessee and against the department. The appeal is accordingly allowed." We therefore find that the ld CIT(A) has not considered the above aspect of the matter and merely for the reason that assessment order has been confirmed in quantum proceedings by the Tribunal, he has confirmed the levy of penalty ex-parte qua the assessee. Given the pec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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