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TMI Blog2021 (2) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act is for both the limbs being filing of inaccurate particulars of income as well as concealment. On a careful perusal of the penalty order passed by the Ld.AO, it is clear that all throughout the submissions made by assessee was in respect of concealment of income regarding the additional sale consideration of land, the Ld.AO levies penalty for furnishing inaccurate particulars of sale consideration of the land. This in our opinion is a clear nonapplication of mind by the Ld.AO. Penalty was initiated by the Ld.AO therein in assessment order passed pursuant to notice under section 153C of the Act, wherein assessee therein declared additional income in the returns filed in response to notice under section 153C of the Act. As decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case. 5. The learned CIT(A) failed to appreciate that the notice issued U/s 271(1)(c) of the Act, was under the limb of failing to complying with notices issued and consequently the order passed U/s 271(1)(c) of the Act, is bad in law on the facts and circumstances of the case. 6. The learned CIT(A) failed to appreciate that the Assessing Officer has not recorded satisfaction in the order of assessment either for failing to comply with notices and consequently the notice issued U/s 274 of the Act, is bad in law on the facts and circumstances of the case. 7. The impugned order of penalty passed under section 271 [1] [c] of the Income-Tax Act, 1961 is without assumption of proper jurisdiction as no notice U/s 271flXc) of the Act, for initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and the AO without making any additions, consequently levy of penalty U/s 271(1)(c) of the Act, is bad in law on the facts and circumstances of the case. 13. Without prejudice to the above, the penalty levied is highly excessive and liable to reduced substantially. 14. The Appellant craves leave to add, alter, substitute and delete any or all of the grounds of appeal urged above. 15. For the above and other grounds to be urged during the hearing of the appeal the Appellant prays that the appeal be allowed in the interest of equity and justice. Brief facts of the case are as under: 2. The assessee is a doctor and also partner in the firm M/s Kerudi Hospital and research Centre, Bagalkot. She filed her return of income for year under cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 153C r.w.sec. 143(3) of the Act held that, assessee concealed income being interest earned as unexplained indirect incomes. 5. Consequently, the Ld.AO issued notice under section 274 of the Act initiating penalty proceedings read with section 271(1)(c ) of the Act. The assessee was called upon to file submissions in respect of the penalty notice issued. Representative of the assessee vide submissions dated 03/07/2015 and 17/07/2015 filed explanations submitting that the assessee s case cannot be brought within the ambit of concealment of income as the Ld.AO has not brought out the same in the assessment order. And that the Ld.AO has initiated penalty mechanically and there has been non application of mind. 6. The Ld.AO however while pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal before us now. 9. At the outset, the Ld.AR submitted that, no addition is made by Ld.AO on the income offered or declared in the return of income filed in response to notice issued under section 153C of the Act. It was submitted that, the entire income offered by assessee have been accepted and the addition pertains to certain agricultural income which is again not based on any seized material found during the course of search belonging to the assessee. The Ld.AR submitted that imposition of penalty is not automatic, even if, assessee has not challenged the order of assessment. In the present facts of the case, the Ld.AR submitted that, assessee paid interest on the income declared by assessee in the return filed in response to not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale consideration of land, the Ld.AO levies penalty for furnishing inaccurate particulars of sale consideration of the land. This in our opinion is a clear nonapplication of mind by the Ld.AO. 13. Law the Ld.AR has placed reliance on the decision of Hon ble Supreme Court in case of DCIT vs Rajkumar Gulab Badgujar reported in (2019) 111 Taxmann.com 257. Hon ble Supreme Court upheld the observations of Hon ble Bombay High Court, reported in (2019) 111 Taxmann.com 256, that where no addition to the income declared by the searched person in the return filed pursuant to search is made it is not open to the revenue to levy penalty by virtue of Explanation 5 to section 271. Hon ble Bombay High Court also held that, Explanation 5A to section 271 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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