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TMI Blog2023 (8) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... t while passing the appellate order. 2.2 It is submitted that, in the facts and the circumstances of the case, and in law, the appellate order so framed be held as bad and illegal, as: (1) The same is framed in breach of the principles of natural justice; and (ii) The same is passed without application of mind to the facts and the submissions brought on record by the Appellant. (iii) The same is passed without providing an opportunity of personal hearing 2.3 It is submitted that in the facts and the circumstances of the case, and in law, no such action was called for. 3 WITHOUT FURTHER PREJUDICE TO THE ABOVE The NATIONAL FACELESS APPEAL CENTRE (NFAC) erred in confirming the action of the A.O. in imposing penalty of Rs. 20,843/- u/s. 270A of the Act, on the ground of alleged under reporting of income. 3.2 It is submitted that in the facts and the circumstances of the case, and in law, no such addition was called for. 3.3 without prejudice to the above, assuming- but not admitting - that some addition was called for, it is submitted that the computation of the addition made by the A.O. is arbitrary, excessive and not in accordance with the law. 4. LIBERTY 4.1. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed or reassessed as per the provisions of section 115JB or section 115JC, as the case may be, is greater than the deemed total income determined in the return processed under clause (a) of sub-section (1) of section 143; (e) the amount of deemed total income assessed as per the provisions of section 115JB or section 115JC is greater than the maximum amount not chargeable to tax, where [no return of income has been furnished or where return has been furnished for the first time under section 148]; (f) the amount of deemed total income reassessed as per the provisions of section 115JB or section 115JC, as the case may be, is greater than the deemed total income assessed or reassessed immediately before such reassessment; (g) the income assessed or reassessed has the effect of reducing the loss or converting such loss into income. (3) The amount of under-reported income shall be,- (i) in a case where income has been assessed for the first time,- (a) if return has been furnished, the difference between the amount of income assessed and the amount of income determined under clause (a) of sub-section (1) of section 143; (b) in a case where [no return of income has been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed while computing loss, as the case may be, in the assessment of such person in any year prior to the assessment year in which such receipt, deposit or investment appears (hereinafter referred to as "preceding year") and no penalty was levied for such preceding year, then, the under-reported income shall include such amount as is sufficient to cover such receipt, deposit or investment. (5) The amount referred to in sub-section (4) shall be deemed to be amount of income under-reported for the preceding year in the following order- (a) the preceding year immediately before the year in which the receipt, deposit or investment appears, being the first preceding year; and (b) where the amount added or deducted in the first preceding year is not sufficient to cover the receipt, deposit or investment, the year immediately preceding the first preceding year and so on. (6) The under-reported income, for the purposes of this section, shall not include the following, namely:- (a) the amount of income in respect of which the assessee offers an explanation and the Assessing Officer or the Commissioner (Appeals) or the Commissioner or the Principal Commissioner, as the case may be, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed income shall be- (a) where no return of income has been furnished [or where return has been furnished for the first time under section 148] and the income has been assessed for the first time, the amount of tax calculated on the under-reported income as increased by the maximum amount not chargeable to tax as if it were the total income; (b) where the total income determined under clause (a) of sub-section (1) of section 143 or assessed, reassessed or recomputed in a preceding order is a loss, the amount of tax calculated on the under-reported income as if it were the total income; (c) in any other case, determined in accordance with the formula- (X-Y) where, X = the amount of tax calculated on the under-reported income as increased by the total income determined under clause (a) of sub-section (1) of section 143 or total income assessed, reassessed or recomputed in a preceding order as if it were the total income; and Y = the amount of tax calculated on the total income determined under clause (a) of sub-section (1) of section 143 or total income assessed, reassessed or recomputed in a preceding order. (11) No addition or disallowance of an amount shall form the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of coordinate benches as under: "[2023] 147 taxmann.com 333 (Pune - Trib.) Jai balaji Business Corporation (P.) Ltd. v. ACIT Section 270A, read with section 43CA, of the Income-tax Act, 1961 - Penalty - For under-reporting and misreporting of income (General) - Assessment year 2017-18 - Assessee sold land at a price less than stamp duty value - Assessing Officer made addition on basis of difference between value declared by assessee and value determined by DVO - Consequently, Assessing Officer also imposed penalty under section 270A - It was noted that value determined by DVO was an estimate based on other properties at different rates which were averaged to find out value which property ought to have realized on transfer - Also difference between value determined by assessee and by DVO was minimal - Whether since only basis of addition made was estimate made by DVO, said addition made on basis of estimation could not provide foundation for under-reported income for purpose of imposition of penalty under section 270A and thus, penalty was to be deleted - Held, yes [Para 3 and 4] [In favour of assessee]" "[2022] 144 taxmann.com 168 (Pune - Trib.) Sai Bhargavanath Infra v. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed in section 113 of the Act. Subsequently, a proviso was inserted u/s 113 by the Finance Act, 2002 w.e.f. 01 -06-2002 to provide for levy of surcharge at 10%. The A.O took the view that the said amendment was clarificatory in nature and he levied surcharge by passing rectification order u/s 154 of the Act. However, the Tribunal and the Hon'ble High Court upheld the assessee's claim that the said amendment was prospective in nature and did not apply to block period falling before 01 -06-2002. However, the plea of the assessee was rejected by the Hon'ble Supreme Court in CIT v. Suresh N. Gupta [2008] 166 Taxman 313/297 ITR 322 also held that the proviso to section 113 is clarificatory and hence, should be read into block assessment scheme under Chapter XIV-B with retrospective effect. Similar view was reiterated by the Hon'ble Supreme Court in CIT v. Rajiv Bhatara [2009] 178 Taxman 285/310 ITR 105 by holding the proviso u/s 113 to be retrospective in nature. Then the Supreme Court was of the view that the issue ought to be referred to a larger Bench of Five Judges. In this decision, the Hon'ble Supreme Court has given fundamental doctrine of retrospective ..... X X X X Extracts X X X X X X X X Extracts X X X X
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