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TMI Blog2010 (12) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... elete the penalty of ₹ 3,73,760/- levied u/s 271(1)(c) of the IT Act, 1961/ 2. The facts of the case are that penalty under section 271(1)(c) was levied in respect of three additions as under :- (1) On account of excess payment of purchases to sister concern M/s Siddhnath Texturizers (P) Ltd. amounting to ₹ 1,17,686/- (2) In respect of disallowance of deduction under section 80IB amounting to ₹ 8,99,344/- (3) In respect of disallowance u/s 40A(2) amounting to ₹ 3,01,067/-. 3. We have heard the parties and carefully perused the material on record. We find that on the quantum addition the matter travelled to the Tribunal which vide its order in ITA No.3978/Ahd/2007 Asst. Year 2003-04 pronounced on 20th A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein only then it can be said that assessee has concealed the particulars of income or furnished inaccurate particulars of income. Prior to this assessee has not done any contumacious conduct on which penalty can be levied. Merely because certain receipts are not recorded in the books of account or receipts are not issued to the patients, but income therefrom was finally declared in the return of income, then there is no contumacious conduct. For not maintaining books of account or not issuing receipts to the patients for the amount received by the assessee, the books, at the best, can be rejected by invoking provisions of section 145(3) and income can be estimated in accordance with section 144. But where the AO accepts the income decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation allowance. The Tribunal cancelled the penalty levied under section 271(1)(c) of the Income-tax Act, 1961. On appeal to the High Court: Held, dismissing the appeal, that as regards the deletion by the Commissioner (Appeals) after referring to the additional evidence led before him, the Tribunal had examined the matter and recorded that a remand report was duly sought and thus no prejudice was caused by considering the additional evidence. With regard to the amount received from S the matter was in the realm of appreciation of evidence. Even if it is held that two views are possible, the inference drawn by the Tribunal, being the final fact finding authority, could not be held to be perverse. The cancellation of penalty was val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thanariswamy Chettiar (S.S.K.G.) (1982) 136 ITR 145 (Mad) Hon. Madras High Court held that penalty can be imposed with reference to the concealment done in the original return filed under section 139. In the case of Sulemanji Ganibhai vs. CIT (1980) 121 ITR 0373 (M.P.) it was held that an assessee incurs penalty under section 271(1)(c) if he files inaccurate particulars of his income in the return or conceals the particulars of income therein. There can be no concealment until there is a duty to disclose. The duty to disclose particulars of income arises at the time when assessee furnishes return of income under section 139 and if in filing his return he conceals the particulars of income or furnishes inaccurate particulars he incurs penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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