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TMI Blog2022 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... s mentioned by the assessing officer. The Assessing Officer levied the penalty under section 271(1)(c) for furnishing inaccurate particulars, and thereafter Ld. CIT(A) confirmed the penalty on account of concealment of particulars of income. Thus, the order of lower authorities committed error in levying the penalty under section 271(1)(c). Thus, in our view the penalty order which was modified by Ld. CIT(A) the impugned order is not sustainable. Thus, the assessee succeeds on primary submission - ITA No.342/SRT/2018 - - - Dated:- 29-9-2022 - Shri Pawan Singh, Judicial Member And Dr Arjun Lal Saini, Accountant Member For the Assessee : Shri Sapnesh R Sheth, CA For the Revenue : Shri Vinod Kumar, Sr-DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of learned Commissioner of Income tax(Appeals)-3,Valsad [for short to as Ld. CIT(A) ] dated 20.08.2015, which in turn arises against the penalty levied by the Assessing Officer under section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) dated 19.03.2014 for assessment year (AY) 2009-10. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has given general explanation in his application for condoning the delay. The assessee should have exercised his right to file appeal in time and the negligent act of assessee in not exercising his right to file appeal may not be condoned in routine way. 4. We have considered the rival submission of both the parties and perused the orders of lower authorities. We find that there is no dispute that the impugned order passed by Ld. CIT(A) on 20.08.2015. the present appeal is filed before Tribunal 02.05.2018, thus, the registry of this Tribunal worked out the delay of 920 days in filing this appeal. The assessee in its application for condonation of delay application fairly accepted that the order passed by ld CIT(A) was received by him in time. The main cause for non-filing of appeal was the mental depression of the assessee due ill health of family members. To support such submissions, the ld AR for the assessee has filed copies of various medical prescription. Hence, we find that the submission of Ld. counsel for the assessee cannot be disbelieved that assessee was under mental depression and could not take step to file appeal in time. came to know about the dismissal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not accepted by the assessing officer and treated the deposit in second bank account as unexplained cash credit. The assessing officer while passing assessment order initiated penalty under section 271(1)(c). On appeal before ld CIT(A) in quantum assessment, the appeal of the assessee was dismissed. Thereafter, assessing officer issued show cause notice dated 10.03.2014 under section 274 rws 271(1)(c). The assessing officer recorded that the assessee appeared through his representative and filed reply, no new facts was mentioned in his reply thus, the assessing officer levied penalty under section 271(1)(c) for filing inaccurate particulars of income. The assessing officer levied minimum penalty @100% of tax sought to be evaded. The assessing officer worked out penalty of Rs. 6,20,295/- in his order dated 19.03.2014. 8. Aggrieved by the order of penalty, the assessee filed appeal before ld. CIT(A). Before ld CIT(A), the assessee filed his submissions. The submissions of the assessee is recorded in para-6.4 of order of Ld. CIT(A). The assessee in its submission submitted that assessee has not concealed anything nor furnished inaccurate particulars. The Assessing Officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer while initiating the penalty on the addition has not specified this specific charge. The Assessing Officer simply recorded that penalty action under section 274 r.w.s. 271(1)(c) of the Act. Thus, the penalty order is not valid. The assessing officer while passing the assessment order has not specified the charge under which limb of section 271(1)(c), it was initiated. However, while passing the penalty the assessing officer levied it for furnishing inaccurate particulars of income. The ld CIT(A) confirmed the penalty for concealment of income. Thus, both the lower authority acted under the different provisions of law. The ld AR for the assessee submits that in absence of specific charge the order of penalty under section 271(1)(c) is not valid. 10. To support his various submissions, Ld. AR of the assessee relied upon the decisions of Full Bench of Hon'ble Bombay High Court in the case of Mohd. Farhan A. Shaikh vs. DCIT, Central Circle-1 Belgaum [2021] 125 taxmann.com 253 (Bom); decision of Hon'ble jurisdictional High Court in the case of CIT vs. Manu Engineering Works 122 ITR 306 (Guj); Nayan C. Shah vs. ITO 386 ITR 304 (Guj); New Sorathia Engineering Co. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as to whether case was one of furnishing inaccurate particulars, or whether it was case of concealment of income, or both. 14. Further the Hon'ble jurisdictional High Court in the case of Manu Engineering Works (supra) while considering the question of law whether Tribunal was right or holding the order of Inspecting Assisting Commissioner of Income-tax imposing penalty under section 271(1)(c) r.w.s. 274(2) of the Act, was without jurisdiction and illegal in cancelling the same held that while issuing notice as to penalty order, it was held that it is incumbent upon the IAC to come to a positive finding as to whether there was concealment of income or whether any inaccurate particulars of such income. Further in case of New Sorathia Engineering Co. (supra), wherein the Hon'ble jurisdictional High Court also held that where the penalty order and order of Commissioner of Appeal showed that no clear-cut finding had been reached as to whether penalty under section 271(1)(c) was being levied for concealment of particulars of income or whether any inaccurate particulars of income had been furnished, the order of penalty cannot be sustained. 15. We further find that the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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