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TMI Blog2021 (6) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... n one footing and concluded on other footing. In instant case, for furnishing inaccurate particulars of income was not the charge against the assessee; the charge was Concealment of particulars of income . Therefore, in our opinion, the basis of levy of penalty itself is not correct, hence penalty order under section 271(1)(c) of the Act needs to be quashed. Accordingly, we quash the penalty order under section 271(1) (c) of the Act. Appeal of the assessee is allowed. - ITA No. 1028/AHD/2014 - - - Dated:- 13-5-2021 - Pawan Singh, Member (J) And Dr. A.L. Saini, Member (A) For the Appellant : Sakar Sharma, CA For the Respondents : Ritesh Mishra, CIT DR and Anupama Singla, Sr. DR ORDER Per Dr. A. L. Saini, Accountant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/-. Penalty proceedings under section 271(1)(c) of the I.T. Act for furnishing of inaccurate particulars of income and concealment of income was separately initiated by issuing notices under section 274 r.w.s. 271(1)(C) of the I.T. Act, 1961. Being aggrieved with the assessment order of the AO, the assessee preferred appeal before the Ld. CIT(A). The Ld. CIT(A), vide his order dated 28-01-2011, partly allowed the appeal of the assessee but confirmed the addition on account of shortage of cash of ₹ 1,19,07,027/-, addition on account of excess of stock of ₹ 31,63,406/-,addition on account of export margin of ₹ 81,15,394/- as found by the survey party and addition made on account of land development charges of ₹ 27,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the Ld. CIT(A), who has confirmed the penalty imposed by the Assessing Officer. Aggrieved by the order of the ld CIT(A), the assessee is in appeal before us. 4. Learned Authorized Representative (in short the Ld. AR ) stated that in assessment proceedings the assessing officer has initiated the penalty proceedings on account of furnishing inaccurate particulars of income , whereas in penalty proceedings the assessing officer has imposed the penalty on account of both the limbs, that is, for concealment of income and furnishing inaccurate particulars of income , hence charge of penalty itself is not certain, therefore, the penalty should not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Artistic tiles and this fact was admitted by Shri Chhaganbhai M. Patel, and the director of the company Shri Manoj C. Patel in his statement receded on oath. The CIT(A), Valsad vide his order dated 28.01.2011 upheld the addition made by the AO on account of shortage of cash of ₹ 1,19,07,027/-, excess stock of ₹ 31,63,406/-, export margin of ₹ 81,15,394/- and land development charges of ₹ 27,00,000/-. 7. Before us, ld AR submitted that notice under section 271(1)(c) of the Act, dated 31.12.2008 issued by the Assessing Officer is defective, as it does not give any particulars about concealment of income or about inaccurate particulars of income. Besides, there is no fix charge for levy of penalty. The charge for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,169/- is levied. 9. We note that the first grievance of the ld. AR is that there is no any definite charge/ accusation on the assessee, whether initiation of penalty proceeding is on account of 'concealment of income' or on account of 'furnishing inaccurate particulars of income'. Let us first examine the charge in the assessment order and penalty order. We note that in assessment proceedings the assessing officer has initiated the penalty proceedings on account of furnishing inaccurate particulars of income , whereas in penalty proceedings, the assessing officer has imposed the penalty on account of both the limbs, that is, for concealment of income and furnishing inaccurate particulars of income , hence charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng inaccurate particulars, or whether it is a case of concealment of income, or both. In the facts of the present case, the Assessing Officer has proceeded on the footing that inaccurate particulars were filed by the assessee, whereas the Tribunal has held that the assessee had suppressed particulars for the year under consideration. Under the circumstances, the Tribunal, having confirmed the penalty imposed by the Assessing Officer on the ground of suppression of actual particulars in respect of which the assessee was not put to notice, the order of the Tribunal is rendered unsustainable on this ground also. 10. Thus, we note that the assessing officer has initiated the penalty proceedings on one footing and concluded on other footing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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