9911796707
TMI Blog2021 (12) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty proceedings u/s 271(1)(c) are initiated . So, initiating penalty proceedings on the basis of vague and ambiguous satisfaction rather no satisfaction are bad in law and as such not sustainable. We are of the considered view that AO has failed to make out a case for furnishing of inaccurate particulars of income or concealment of particulars of income by the assessee so as to attract the provisions contained u/s 271(1)(c) of the Act. More so, when undisputedly, income has been estimated by the AO, there is no scope for concealment by the assessee so as to attract the provisions contained u/s 271(1)(c) - Decided in favour of assessee. - ITA No. 7528/DEL/2017 - - - Dated:- 25-11-2021 - Shri Anil Chaturvedi, Accountant Member And Shri Kuldip Singh, Judicial Member For the Assessee : Shri R.K. Gupta, Advocate For the Revenue : Ms. Kirti Sankartyan, Senior DR ORDER PER KULDIP SINGH, JUDICIAL MEMBER : Appellant, Shri Alok Garg (hereinafter referred to as the assessee ) by filing the present appeal sought to set aside the impugned order dated 14.09.2017 passed by the Commissioner of Income-tax (Appeals), Ghaziabad affirming the penalty order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have heard the ld. Authorized Representatives of the parties 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. 5. Undisputedly, the entire addition has been made by the AO/confirmed by the ld. CIT (A) on the basis of estimated net profit @ 8% of the turnover by following his own order for Assessment Year 2010-11 which has since been set aside and net profit has been estimated @ 3% of the turnover. It is also not in dispute that following the order passed by the coordinate Bench of the Tribunal in assessee s own case for AY 2010-11 order dated 21.04.2017 , this Bench has also accepted net profit rate @ 3%. 6. In the backdrop of the aforesaid facts and circumstances of the case, order passed by the lower authorities and arguments addressed by the authorized representatives of both the parties, the sole question arises for determination in this case is:- as to whether the assessee has concealed particulars of income or has furnished inaccurate particulars of income during assessment proceedings? 7. Ld. AR for the assessee contended that in order to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id date which will be considers before any such order is made under section 271(1)(c). Sd/- (Yashvendra Singh) Dy.Commissioner of Income Tax, Circle 1, Ghaziabad. 9. 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. 10. Hon ble Apex Court in case of CIT vs. SSA s Emerala Meadows - (2016) 73 taxmann.com 248 (SC) while dismissing the SLP filed by the Revenue quashing the penalty by the Tribunal as well as Hon ble High Court on ground of unspecified notice has held as under:- Section 274, read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted u/s 271(1)(c) are not sustainable. 13. Even the AO has failed to apply his mind at the time of recording satisfaction at the time of framing assessment to initiate the penalty proceedings u/s 271(1)(c) of the Act as to under which limb of section 271(1)(c) i.e. for concealing particulars of income or furnishing inaccurate particulars of such income, penalty proceedings have been initiated rather written vague and ambiguous satisfaction recorded that, penalty proceedings u/s 271(1)(c) are initiated . So, initiating penalty proceedings on the basis of vague and ambiguous satisfaction rather no satisfaction are bad in law and as such not sustainable. 14. Even otherwise, in identical facts and circumstances of the case, coordinate Bench of the Tribunal in AY 2010-11 (supra) deleted the penalty u/s 271(1)(c) of the Act by returning following findings :- 8. I have considered the submissions of both the parties and carefully gone through the material available on the record. It is noticed that an identical issue has been adjudicated in the case of ITO V s Smt. Purnima Devi Gupta (supra) wherein it has been held as under : The assessee had shown gross receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
