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TMI Blog2023 (6) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... red on facts and in law in upholding the levy of penalty of Rs. 10,000 under section 271 (1)(b), without appreciating that the appellant had duly responded to and complied with the notice issued under section 142(1) of the Act. 3. That the Commissioner of Income Tax (Appeals) erred on facts and in law in holding that the appellant failed to co-operate in the investigation proceedings by refusing to sign the 'consent- form', without appreciating that the appellant was not at all competent to sign such form. 4. Without prejudice, that the Commissioner of Income Tax (Appeals) failed to appreciate that penalty under section 271(1)(b) r.w.s. 273B of the Act was even otherwise not leviable since there existed 'reasonable cause' for not furnishing the 'consent- form' sought by the assessing officer." 4. The assessee has also raised the following additional grounds of appeal: "1. That on the facts and circumstances of the case and in law, the penalty order dated 01.10 .2013 passed under section 271(1)(b) of the Income Tax Act, 1961 (' the Act') in respect of invalid proceedings under section 143 (3) r.w.s. 153A of the Act, is without jurisdiction, ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income- tax Officer. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commissioner must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The Appellate Assistant Commissioner should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same observations would apply to appeals before the Tribunal also. 7. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner of Income- tax (Appeals) takes too narrow a view of the powers of the Appellate Tribunal [ vide, e.g., C.I. T, v. Anand Prasad (Delhi), C.I.T. v. KaramchandPremchand P. Ltd. and C.I.T. v. Cellulose Products of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k accounts with Hongkong and Shanghai Banking Corporation (HSBC) in Switzerland, etc. The information received was covered under the confidentiality clause of the DTAA, and its contents could not be disclosed by the Income Tax department without express consent of the country which had shared the information. 9.2. Based on the above information received, investigations were initiated by the department in July 2011. Some persons appeared suo- motu before the tax authorities and have admitted that they have had bank account with HSBC and also paid the due tax on the maximum amount deposited/ outstanding in the account. In several cases, searches were conducted and the persons searched also admitted to have opened accounts overseas and not disclosed it for tax purposes in India. However, during the investigations, several persons have denied have admitted opening the account but denied of having any transactions. In cases, where details of the transactions in the accounts were not available, or where persons have denied any account or any transaction in the account, reference has been made to HSBC by way of a "Consent Letter" signed by the alleged account holder and duly notarized, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure to sign on the so called "Consent Letter" which is not an authorized form notified by the Government. 11. Heard the arguments of both the parties and perused the material available on record. The provisions of the Act and the judicial pronouncements on the issue of levy of penalty u/ s 271(1)(b) are examined in detail. 12. The provisions of Section 273B reads as under: " 273B. Penalty not to be imposed in certain cases.- Notwithstanding anything contained in the provisions of clause (b) of sub- section (1) of section 271, section 271A, section 271AA, section 271B, section 271BA, section 271BB, section 271C, section 271CA, section 271D, section 271E, section 271F, section 271FA, section 271FB,section 271G, clause (c) or clause (d) of sub- section (1) or sub- section (2) of section 272A, sub- section (1) of section 272AA or section 272B or sub- section (1) or sub- section (1A) of section 272BB or sub- section (1) of section 272BBB or clause (b) of sub- section (1) or clause (b) or clause (c) of sub- section (2) of section 273, no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provisions if he proves t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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