9911796707
TMI Blog2020 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Commissioner of Income Tax (Appeal). 2. The Appellant craves leave to add, alter, delete or modify all or any the above grounds at the time of hearing. 3. The brief facts of the case are that the assessee had filed return of income for AY 2004-05 on 01/11/2004, declaring total income of Rs. 3,30,925/- and the assessment was completed u/s 143(3) of the I.T.Act, 1961 on 28/12/2006 determining total income at Rs. 27,16,226/- inter-alia by making additions towards unexplained cash credits u/s 68 of the I.T.Act, 1961 for Rs. 18 Lacs towards unsecured loans taken from certain parties. The assessee carried matter in appeal before first appellate authority and the Ld.CIT(A), vide order dated 17/01/2012, has confirmed addition of unexplained cash credit. The assessee carried matter in further appeal before Tribunal and the ITAT, Mumbai, vide order dated 05/02/2013 in ITA No. 4049/Mum/2009 has set aside the issue to the file of the Ld. AO to decide the additions after allowing fresh opportunities of hearing to the assessee. Thereafter, the assessment has been completed u/s 143(3) r.w.s. 254 of the I.T.Act, 1961 on 27/03/2014, wherein the additions on account of unexplained cash c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it case for levying penalty u/s.271(1)(c) of the Act, The minimum and maximum penalty works out to @100% of tax sought to be evaded and Rs. 8,88,762/- @300% of tax sought to be evaded by the assessee. 5. Being aggrieved by the penalty order, the assessee preferred an appeal before the Ld.CIT(A). Before the Ld.CIT(A), the assessee has challenged imposition of penalty on legal grounds and argued that penalty levied by the Ld. AO, consequent to invalid notice is void ab-initio and liable to be quashed. The assessee has also challenged penalty imposed on additions towards unexplained cash credits, on the ground that the assessee has voluntarily surrendered additions, not for any of the reasons, but to buy peace and to end litigations. Therefore, the same cannot be considered as concealment of particulars of income. The Ld.CIT(A) after considering relevant submissions of the assessee and also by relied upon various judicial precedents confirmed penalty levied by the Ld. AO u/s 271(1)(c) of the Act, on the ground that even though, the ITAT had set aside the matter especially for the purpose of providing opportunity to the assessee for cross-examining of M/s Kailash Kabra, the fact is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he peak unexplained credit from M/s Ruchita Enterprises & M/s Antima Corporation. According to assessee, the cash credit from M/s Deepak Corporation \vas explained since Mr. Kailash Kabra had earlier categorically admitted that said concern was his proprietary concern. In the said letter dated 04.03.2014, the assessee offered the net addition of Rs. 8,06,132/-proviried no penalty he levied and no adverse inference is drawn. 1 however find that firstly, the said letter dated 04.03.2014 does not bear the acknowledgement stamp of the AO's office; and secondly, even if the assessee might have made such offer subject to condition that no penalty be levied, it was for the AO to accept such condition or not. The fact is that the AO in his order u/s 143(3) r.w.s. 254 has indeed restricted the addition for unexplained expenditure to Rs. 8.06.132/-. However, he has initiated penalty proceedings u/s 271(1 )(c) of the Act as well. I find that while the Hon'ble ITAT's had set aside the matter especially for the purpose of providing opportunity to the assesse for cross examination of Mr. Katlash Kabra, the fact is that she assessee could not avail the said opportunity legitimately fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity accorded by Tribunal. Accordingly, the penalty of Rs. 2.96.254/- deserves to be confirmed, and therefore, the grounds of appeal are dismissed. 6. The Ld. AR for the assessee referring to additional grounds filed challenging the validity of notice issued u/s 274 r.w.s 271 of the I.T.Act, 1961, dated 27/03/2014 submitted that the Ld. AO has issued a vague notice without striking of non applicable or irrelevant portion in the notice, which is evident from the fact that the Ld. AO has not applied his mind to the facts before initiating penalty under which limb the proposed penalty proceedings has been initiated. The Ld. AR, further submitted that even in assessment order, the Ld. AO has not arrived at clear satisfaction to the limb under which penalty is proposed, which is evident from the fact that, he simply mentioned that penalty proceedings u/s 271(1)(c) of the Act, separately initiated for concealment of particulars of income. Further, while levying penalty in the order dated 30/09/2014, the Ld. AO has levied penalty for concealment of particulars of income and for furnishing inaccurate particulars of income. From the above, it is very clear that there is no clarity from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assesse challenging validity of notice issued u/s 274 r.w.s 271 of the Act. The assessee has filed copy of notice issued u/s 274 r.w.s. 271(1)(c) of the Act, dated 27/03/2014, which is enclosed in the paper book filed at page No.7. On perusal of notice issued by the Ld. AO, we find that the Ld. AO has issued printed form of notice without striking off, or ticking relevant portion of the notice, which is applicable to the facts of the present case. Further, on perusal of assessment order passed by the Ld. AO, we find that the Ld. AO has initiated penalty proceedings for concealment of particulars of income. But, in the penalty order passed on 30/09/2014, the Ld. AO has levied penalty u/s 271(1)(c) of the Act for concealment of particulars of income and for furnishing inaccurate particulars of income. From the above, it is very clear that the Ld. AO has not arrived at clear satisfaction as to under which limb of provisions of section 271(1)(c) of the Act, the proposed penalty proceedings has been initiated, which is evident from the fact that there is no clear satisfaction in the assessment order and the notice is absolutely silent on this aspect. The said lapse is continued ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
