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TMI Blog2021 (10) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... able to be quashed. 2.1 The learned Commissioner of Income tax (Appeals) - 18, New Delhi has erred in confirming the penalty levied by the learned assessing officer under section 271(1)(c) without specifying in the notice under section 271 read with section 274 dated 20.03.2015, as to whether the penalty is leviable for concealment of income or for furnishing of inaccurate particulars of income. The order so passed under section 271(1)(c) is bad in law in view of the decision of the Karnataka High Court in the case of CIT v Manjunatha Cotton & Ginning Factory (2013) 35 taxmann.com 250 and CIT v SSAs Emerlad Meadows 73 taxmann.com 241 (SLP filed by the revenue has been dismissed by the Supreme Court 73 taxmann.com 248). 2.2 On the facts and circumstances, the order so passed by the learned Commissioner of Income tax (Appeals) - 18, New Delhi is bad in law and liable to be quashed. 3.1 The learned Commissioner of Income tax (Appeals) - 18 New Delhi has erred in confirming the action of AO who without arriving at a prima facie satisfaction as to the alleged concealment of income or furnishing of inaccurate particulars of income had levied penalty under section 271(1)(c). 3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy the penalty to the tune of Rs. 12,72,563/- @ 100% of the tax sought to be evaded u/s 271(1)(c) of the Act. 3. Assessee carried the matter before the ld. CIT (A) by way of filing appeal who has confirmed the penalty by dismissing the appeal. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal. 4. Assessee has not preferred to put in appearance despite issuance of the notice and consequently, we proceeded to decide the present appeal with the assistance of the ld. DR as well as on the basis of documents available on the file. 5. We have heard the ld. Departmental Representative for the Revenue/appellant to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. 6. Ld. DR for the Revenue to repel the queries put-forth to him relied upon various decisions viz. Vijay Aggarwal vs. DCIT 2019-TIOL-1628-ITAT-DEL, Sundaram Finance Ltd. vs. CIT (2018) 99 taxmann.com 152 (SC), Sundaram Finance Ltd. vs. CIT (2018) 403 ITR 407 (Madras), CIT vs. Smt. Kaushalya (1995) 216 ITR 660 (Bom.), New Holland Tractors (India) (O) Ltd. vs. CIT (2015) 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty on you should not be made under section 271 of the Income Tax Act, 1961. If you do not wish to avail yourself of this opportunity of being heard in person or through authorized representatives you may show cause in writing on or before the said date which will be considers before any such order is made under section 271. Sd/- Assessing Officer, (Amit Kumar Jain) Dy. Commissioner of Income Tax, Circle 12(20, New Delhi." Place : New Delhi Date : 20.03.2015 10. Bare perusal of the notice issued u/s 274 read with section 271(1)(c) of the Act, extracted above, in order to initiate the penalty proceedings against the assessee goes to prove that the AO himself was not aware / sure as to whether he is issuing notice to initiate the penalty proceedings either for "concealment of particulars of income" or "furnishing of inaccurate particulars of such income" by the assessee rather issued vague and ambiguous notice by incorporating both the limbs of section 271(1)(c). When the charge is to be framed against any person so as to move the penal provisions against him/her, he/she is required to be specifically made aware of the charges to be leveled against him/her. 11. Bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it did not specify which limb of Section 271(1) (c) the penalty proceedings had been initiated under i.e. whether for concealment of particulars of income or for furnishing of inaccurate particulars of income. The Karnataka High Court had followed the above judgment in the subsequent order in Commissioner of Income Tax v. SSA's Emerald Meadows (2016) 73 Taxman.com 241 (Kar) , the appeal against which was dismissed by the Supreme Court of India in SLP No. 11485 of2016 by order dated 5th August, 2016." 14. We have further gathered that when the assessee has disclosed all the particulars in the return of income claiming certain expenses, however found to be not allowable, it would not amount to furnishing of inaccurate particulars of income to attract the penal provisions u/s 271(1)(c) of the Act, as has been held by Hon'ble Apex Court in the case of Reliance Petro Products Pvt. Ltd. - 322 ITR 158 (SC), operative part of which is extracted for ready perusal as under :- "A glance at the provisions of section 271(1)(c) of the I.T. Act, 1961 suggests that in order to be covered by it, there has to be concealment of the particulars of the income of the assessee. Secondly, the ass ..... 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