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TMI Blog2024 (3) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty proceeding are different from assessment proceeding and that mere addition in assessment could not automatically lead to concealment. Addition made in assessment is not conclusive in the penalty proceeding in which the assessee is free to place further material to substantiate the claim that there was no concealment. Merely non-filing of appeal by the assessee against addition made in assessment cannot be a ground to conclude that assessee accepted the concealment. Therefore in these facts the CIT Appeal has wrongly upheld the penalty imposed by the Assessing Officer. Immunity from imposition of penalty for underreporting of income if assessee has deposited the demand created by the Assessing Officer within 30 days from receipt of demand notice and intimated to him under rule 129 in Form No. 68 - In this case assessee duly deposited the demand created against her within 30 days but she failed to file Form No. 68 within the prescribed time before the Assessing Officer but while responding to the penalty proceeding subsequently the assessee filed Form No. 68 before the Assessing Officer but he did not consider it. CIT(Appeal) has also did not consider the filing of Form No. 68 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for condonation of delay with following prayers and the assessee to this effect also filed an affidavit :- In this case appeal order u/s 250 arising out of order u/s 270A was passed on 15/02/2023 by worthy CIT(A), NFAC, New Delhi. The appellant aggrieved from the order preferred an appeal before the Hon'ble Bench by filing it online on government portal. The appellant is not convergent with technical rules of law, therefore I thought that filing of appeal online means the said appeal has been filed in all respect and in accordance with law. But sir, at that time hard copy of the said appeal was also required to be filed within 60 days from the date of service of order passed by CIT(A) but assessee could not file the hard copy before the Hon'ble Bench. Sir, in this manner technical violation has been caused in filing the said appeal while the filing of appeal online was within the prescribed time. Sir, government itself has done away with the requirement of filing hard copy before the Bench w.e.f. 01/07/2023 and from this date the appeal can be filed either online or offline. Sir, therefore it is very legitimate expectation from Hon'ble Bench in these circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y upheld may please be deleted. 4. That no personal hearing was provided to us during the proceeding therefore it violates the principles of natural justice in the facts and circumstances of the case. 5. That the Assessing Officer issued notice for underreporting of income u/s 274 r.w.s 270A not for misreporting of income. Therefore no penalty for misreporting of income can be imposed by the Assessing Officer and the CIT(Appeal) has wrongly confirmed the penalty in the facts and circumstances of the case. 6. That appellant prays for justice and may please be allowed to add/ amend/ alter further or any grounds of appeal on or before hearing on the case. 4. Brief fact of the case is that in this case, the return of income in this case was filed for A.Y. 2017-18 electronically on 01.10.2017, declaring total income of Rs. 6,21,760/- which was, subsequently, selected for Scrutiny (Computer Aided Scrutiny Selection). Assessment under section 143(3) of the Income Tax Act, 1961 (hereinafter called the Act) was completed on 11.12.2019 by assessing income at Rs. 8,03,310/-. During the year under consideration, assessing officer has added Rs. 28,388/- on account of violation of section 40A(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceedings that income under- reported by the appellant came to light and same were added to the total income of the appellant. Had it not been for the assessment the appellant could have escaped paying the due taxes. Therefore, the AO was just and right in initiating and levying the penalty in the case of the appellant. 4.3.1 In respect of the claim of the appellant regarding eligibility of immunity from penalty, it is noted that in the case of the appellant, the assessment proceedings were completed on 11.12.2019 and penalty was levied vide order dated 03.02.2022. As per the requirement of section 270AA of the Act, which contains the provisions of immunity from levy of penalty, the appellant was required to file an application in Form 68 as prescribed in Rule 129. The provisions of the section 270AA are reproduced hereunder. Section 270AA. ************************** 4.4. On perusal of the provisions of the section 270AA of the Act, it is clearly evident that the assessee is mandatorily required to file an application to avail immunity benefits referred in sub-section (1) within one month from the end of the month in which the order referred to in clause (a) of sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome in the other sources and has also disallowed the claim of the assessee u/s 32 of the Act disputing the period use of the asset of the assessee for an amount of Rs. 1,00,000/-. Therefore, we find force in the arguments of the ld. AR of the assessee that the additions/disallowance made by the Assessing Officer are not in the nature of misreporting of the income of the assessee to drive home to this contention, the ld. AR of the assessee relied upon the decision of the jurisdictional high court in the case of G. R. Infraprojects Ltd. Vs. ACIT 336 CTR 249 wherein the jurisdiction high court held that the case of levy penalty without specifying the limb of under reported or misreported the income the levy of penalty is not correct. Here in this case the claim of assessee denied though assessee did not challenge it on merits. The bench noted that the ld. CIT(A) has treated assessment and penalty proceedings at par. While it is settled lat that penalty proceeding are different from assessment proceeding and that mere addition in assessment could not automatically lead to concealment. Further addition made in assessment is not conclusive in the penalty proceeding in which the assesse ..... 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