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TMI Blog2021 (1) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... of inaccurate particulars of income can be said to have resulted in tax sought to be evaded by the assessee. That there was some tax sought to be evaded by assessee, is a necessary condition for imposition of penalty U/s 271(1)(c) - The allegation of the Ld. CIT(A) that the assessee had the bogus income or bogus credit, is pointless, because the corresponding amount of ₹ 6,62,000/- was already included in the returned income of the assessee. For levy of penalty U/s 271(1)(c) , what has to be shown is whether, and if so, how, assessee can be said to have sought to evade tax. AO and the Ld. CIT(A) and the Ld. Sr. DR have failed to establish conclusively that the assessee had sought to evade tax.- Penalty deserves to be deleted - Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n received was for the speculation profit of ₹ 6,62,000/- which stood already disclosed in the return and accepted in the return originally submitted in the return filed in response to Section 147/148 of the Income Tax Act, 1961, thereby leaving no basis for penalty, Commissioner of Income Tax (Appeals) has failed to appreciate the same. iv. Because the AO has opted the provisions of Section 115BBE of the Income Tax Act to the facts and circumstances without appreciating that the provisions of Section 115BBE come into force w.e.f. 2012 and the AO can not invoke the provision which was not there on the statue book, the CIT(A) has failed to consider the order of the AO and written submission of the appellant. Thus the order of CI( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the aforesaid amount of ₹ 59,67,040/- (same as returned income). However in the Assessment Order an amount of ₹ 6,62,000/- was excluded from the head PGBP (Profits and Gains of Business and Profession); and the same amount of ₹ 6,62,000/- was added U/s 68 of IT Act. In the result, assessed income of ₹ 59,67,040/- was the same as the returned income of ₹ 59,67,040/-. The Assessing Officer also levied penalty U/s 271(1)(c) of IT Act, amounting to ₹ 1,98,600/- vide order dated 29.06.2018, holding that the assessee had furnished inaccurate particulars of income. The Assessing Officer relied on judicial pronouncements in the cases of CIT vs. Indian Metals Ferro Alloys Ltd. (1994) 117 CTR (Ori.) 378, CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Form 35 7. Copy of notice of the AO for the penalty proceedings with screen shot of ITD portal 8. Challan of fee of Tribunal 9. Power of Attorney (C) At the time of hearing before us, the Ld. Counsel for the Assessee vehemently contended that penalty U/s 271(1)(c) of IT Act levied in the case of the Assessee was erroneous in law, in the facts and circumstances of the case. He drew our attention to the fact that there was no addition to the returned income of the assessee either at the time when original return was filed on 15.10.2010 or in the course of proceedings U/s 147 of IT Act. He contended that the returned income of the assessee has been accepted by Revenue, in view of which penalty U/s 271(1)(c) of IT Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed income of the assessee. The Assessing Officer as well as the Ld. CIT(A) have failed to make out a case for levy of penalty U/s 271(1)(c) of I.T. Act because they have been unable to show, when assessed income is same as returned income; whether, and if so, how allegation of furnishing of inaccurate particulars of income can be said to have resulted in tax sought to be evaded by the assessee. That there was some tax sought to be evaded by assessee, is a necessary condition for imposition of penalty U/s 271(1)(c) of IT Act. The allegation of the Ld. CIT(A) that the assessee had the bogus income or bogus credit, is pointless, because the corresponding amount of ₹ 6,62,000/- was already included in the returned income of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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