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TMI Blog2018 (3) TMI 2040X X X X Extracts X X X X X X X X Extracts X X X X ..... law, the Ld. CIT (A) was right in deleting the penalty of Rs. 31,37,972/- levied u/s. 271(1)(c) of the I.T. Act, 1961 without appreciating the facts that had made the disallowance only after the receipt of notice u/s. 148 and had the notice not been issued, the assessee would not have disclosed/revised its return of income. 2. The appellant prays that the order of CIT (A) on the above ground be set aside and that of the Assessing Officer be restored. 3. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary." 2. Briefly stated, the facts of the case are that the assessee company which is engaged in the business of providing general insurance had e-filed its return of income for A.Y 2007-08, declaring loss of Rs. 2,88,23,400/- (after claiming set off of short term capital gain of Rs. 4,02,16,787/-). The case of the assessee was taken up for scrutiny assessment under Sec. 143(2) and its total income was determined under the normal provisions at Rs. 2,53,22,500/- and the "book profit" under Sec. 115JB at Rs. 26,68,976/-. Subsequently, the A.O while giving effect to the order of the CIT (A) revised the total a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be held as bogus transactions and the amount booked as an expenditure in respect of such transactions be not disallowed, submitted that no adverse inferences in respect of the veracity of the transactions were liable to be drawn in its hands on the basis of the unsubstantiated report of the investigation wing of the department. However, the A.O not impressed with the contention of the assessee, observed that as Mr. Praveen Agarwal had categorically admitted in his statement recorded under oath that M/s Tuticorin Trexim Pvt. Ltd, a group company, had during the period 15.05.2006 to 31.03.2012 provided accommodation entries to the assessee on account of commission/contractual charges/professional charges, therefore, it could safely be concluded that the aforesaid company had not provided/rendered any services to the assessee company, but rather, had only provided accommodation entries on the basis of which the assessee had suppressed its income. The A.O in the backdrop of his aforesaid conviction concluded that as the transactions of the assessee with Tuticorin Trexim Pvt. Ltd. (now known as Makesworth Project Developers Pvt. Ltd.), a group company of Mr. Praveen Agarwal, were pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagement, which included the work in relation to policies issued, more particularly courier, printing, data entry etc., and not paid any commission for procuring customers. (iv) The statement of Mr. Pravin Aggarwal that the money received were refunded to the beneficiary companies is an unverified statement and assessee denies having received the money back from Tuticorin and there is no evidence produced in support of so called return of money. (v) Besides the statement of Mr. Pravin Aggarwal no other evidence is provided to the assessee and said statement is not relevant as Mr. Aggarwal is not a director of Tuticorin. Statement of a third party cannot be taken as evidence as regards the transaction between a company of which he is not a director. (vi) No information has been provided as to whether statement has been retracted by Mr. Pravin Aggarwal. However, the A.O not persuaded to be in agreement with the aforesaid contentions of the assessee, therefore, declined to accept the same. The A.O observed that Shri Praveen Agarwal had in his statement categorically admitted that he had floated number of companies to carry out the activity of issuing accommodation bills to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts income and concealed particulars of income as envisaged in Sec. 271(1)(c) in respect of the aforesaid amount of Rs. 93,22,558/-, therefore, imposed a penalty of Rs. 31,37,972/-. 6. Aggrieved, the assessee assailed the order of the A.O imposing penalty under Sec. 271(1)(c) before the CIT(A). During the course of the appellate proceedings it was submitted by the assessee that the voluntary disallowance of the amount of Rs. 93,22,558/- paid to M/s Tuticorin Trexim Pvt. Ltd. (now known as Makesworth Project Developers Pvt. Ltd.) was made with the intent to avoid protracted litigation on the matter, in the backdrop of the substantial losses which were suffered by the assessee on year on year basis. The assessee submitted before the CIT (A) that as the penalty proceedings are separate and distinct from the assessment proceedings, therefore, the parameters considered for the disallowance of an expenditure were substantially different from those relevant for levy of penalty. The assessee in the backdrop of the aforesaid facts submitted that as it had voluntarily disallowed the amount of Rs. 93,22,558/- paid to M/s Tuticorin Trexim Pvt. Ltd. (now known as Makesworth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwal did hold the ground or was retracted. The assessee in order to fortify its claim that no penalty under Sec. 271(1)(c) was liable to be imposed in its hands, relied on the following judicial pronouncements: (i) Swati Pearls and Jewellers Vs. DCIT (Trib) ITA No. 1401/Hyd/2014 (ii) Ashok Raj Nath Vs. ACIT [2013] 33 taxmann.com 588 (Delhi-Trib.) (iii) CIT Vs. Suresh Chandra Mittal [2001] 119 TAXMANN 433 (SC) (iv) Vipul Life Scinences Ltd. Vs. DCIT ITA No. 5948/Mum/2014 & 5949/Mum/2014 (v) Vasavi Shelters Vs. ITO [2013] 32 taxmann.com 26 (Bangalore- Trib) (vi) Saket Agarwal Vs. ITO [2013] 36 Taxmann.com 293 (Delhi-Trib) (vii) Marathon Nextgen Reality & Textiles Ltd. Vs. DCIT (2013) 36 Taxmann.com 3 (Mumbai-Trib) (viii) CIT Vs. Punjab Tyres (1986) 162 ITR 517 (HC MP) 7. The CIT (A) after deliberating on the facts of the case, observed that the sole basis for characterising the transactions between the assessee and Tuticorin Trexim Pvt. Ltd. as bogus transactions by the A.O was the stand alone statement of Shri Praveen Agarwal which was shared by the DIT (Inv.), Kolkata with him. The CIT (A) further observed that it remained as a matter of fact that no evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating on the fundamental question for which their indulgence was sought, i.e as to whether any additional income/reduced loss declared in a return of income filed by an assessee in response to a notice under Sec. 148 would tantamount to admission of concealment/inaccurate particulars of income, had observed as under:- "26. It is a fact that in live assessments, no addition whatsoever was made by the AO. It is also a fact that while examining the books in the course of assessment proceedings, the AO did not lay his hands on any item of income, which the assessee had not declared in the return or fill the assessment Vipul Life Sciences Ltd." The Tribunal further observed as under: "30. We are supported by the decision of the coordinate Bench at Bangalore in the case of Muninapa Reddy Vs. ACIT, reported in 201317taxman.com 440, where it was held, "There can be no concealment or non-disclosure, as the assessee had made a complete disclosure in the return and offered the surrendered amount for the purposes of tax and, therefore, no penalty under section 271(1)(c) could be levied. The words 'in the course of any proceedings under this Act" in section 271(1) are prefaced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by assessee, penalty cannot be imposed. There is no such concealment or nondisclosure as the assessee had made a complete disclosure in the return and offered the surrendered P. amount for the purposes of tax. 34. In the case of Dilip Kedia Vs. ACIT, reported in 2013-40 taxman.com 102, the coordinate Bench at Hyderabad held, considering all the aspects viz., the assessee had declared the amount he will be offering in the course of statement recorded under section 132(4), the Assessing Officer has not brought on record any other materials or evidence for coming to the conclusion that the assessee had concealed any income except for the statement recorded under section 132(4), even the CBDT has cautioned the Assessing Officers to make additions based purely on the sworn statements recorded under section 132(4), the Explanation 5A as it stood on the date of filing of return/revised return by the assessee, levy of penalty on the additional income included in the return based only on the sworn statement of the assessee cannot be sustained. Accordingly the penalty levied upon the assessees deserved to be deleted." 38. The fact that the revenue authorities accepted the books o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he A.O, therefore, there remained no occasion for imposing penalty under Sec. 271(1)(c) on the assessee. The CIT (A) taking support of the aforesaid judicial pronouncements was of the view that now when in the present case the assessee had made a complete disclosure in its return of income filed in compliance to notice issued under Sec. 148, which was accepted by the A.O without making any further additions/disallowances, therefore, the question of concealment /furnishing of inaccurate particulars would no longer arise. The CIT (A) held a conviction that once an assessee had availed the opportunity to file a fresh return of income in response to a notice issued under Sec. 148 and had made a complete disclosure, then irrespective of the fact that the case of the assessee was reopened on the basis of "tangible material", there would remain no occasion for imposing penalty under Sec. 271(1)(c) for concealment/furnishing inaccurate particulars of income in the hands of the assessee. The CIT (A) while concluding as hereinabove relied on the following judicial pronouncements:- 1) Prem Arora Vs. DCIT-24 Taxmann.com 260 (Delhi Tribunal) 2) Purti Sakhar Karkhana Vs. DCIT 35 Taxmann.com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld. D.R submitted that as the CIT (A) loosing sight of the aforesaid material facts had erred in vacating the well reasoned penalty imposed by the A.O under Sec. 271(1)(c), therefore, his order may be set aside and that of the A.O be restored. 9. The ld. Authorized Representative (for short "A.R") for the assessee at the very outset of the hearing of the appeal objected to the validity of the penalty imposed by the A.O under Sec. 271(1)(c). It was submitted by the ld. A.R that as the A.O had failed to mention in the "Show cause" notice (for short "SCN") the default for which the impugned penalty proceedings were being initiated in the hands of the assessee, therefore, the very assumption of jurisdiction and imposition of penalty under Sec. 271(1)(c) in the hands of the assessee was bad in the eyes of law. The ld. A.R in order to fortify his aforesaid contention, took us through the copy of the notice issued under Sec. 274 r.w.s. 271(1)(c) of the Act, dated 02.02.2015 (Page 1) of his "Paper book" (for short "APB"), wherein the A.O had failed to strike off the irrelevant default in the notice, and thus had failed to put the assessee to notice as regards the default for which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f mind and to avoid unnecessary litigation had in its "return of income" filed in compliance to the notice issued under Sec. 148 voluntarily disallowed the payments of Rs. 93,22,558/- made to Tutucorin Trexim Pvt. Ltd. (now known as Makesworth Project Developers Pvt. Ltd.), which was accepted by the A.O and no part of the same was found to be incorrect or erroneous or false, therefore, no penalty under Sec. 271(1)(c) could have been validly imposed in its hands. It was further submitted by the ld. A.R that though it remained as a matter of fact that the assessee company had made payments to Tuticorin Trexim Pvt. Ltd. (now known as Makesworth Project Developers Pvt. Ltd.) in respect of the courier, printing, data entry services etc, which fact was duly corroborated on the basis of the sample invoices that were produced during the course of the assessment proceedings before the A.O, but however, with the intent to avoid protracted litigation on the matter in the backdrop of the continuous losses suffered on year to year basis, the assessee had voluntarily disallowed the aforesaid amount in its "return of income" filed in compliance to notice issued under Sec. 148 of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. We find that the revenue has sought our indulgence in the present appeal for adjudicating the validity of the order passed by the CIT (A) deleting the penalty imposed by the A.O under Sec. 271(1)(c) of the Act. We shall first advert to the preliminary objection raised by the ld. A.R as regards the validity of the penalty proceedings initiated by the A.O under Sec. 271(1)(c), without putting the assessee to notice as regards the default for which it was called upon to show cause as to why penalty under the aforesaid statutory provision may not be imposed on it. We have deliberated on the objection raised by the ld. D.R that as the assessee had neither filed an appeal or cross-objections before the Tribunal, therefore, it would not be permissible on its part to assail the validity of the penalty proceedings for the very first time during the course of hearing of the appeal before the Tribunal, on the ground that the A.O had failed to strike off the irrelevant default in the "Show cause" notice issued to the assessee. We are unable to per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon to explain as to why the penalty under Sec. 271(1)(c) may not be imposed on it. We have further perused the second "SCN" issued by the A.O on 13.08.2015 (Page 2 of "APB") wherein the A.O by way of a letter making a specific mention that it appeared that the assessee had concealed the particulars of income or furnished inaccurate particulars of such income had called upon the assessee to show cause as to why penalty under Sec. 271(1)(c) read with Explanation 1 may not be imposed on it for concealing particulars of income/furnishing inaccurate particulars of such income. We find that the aforesaid default on the part of the A.O was allowed by him to perpetuate as such and even in the "SCN" dated 13.08.2015, (Page 2 of "APB") the default for which the assessee was called upon to explain as to why penalty under Sec. 271(1)(c) may not be imposed in its hands was not specified by the A.O. We would now test the validity of the aforesaid notice and the jurisdiction emerging therefrom in the backdrop of the aforesaid facts as they so remain. We are not oblivious of the fact that the A.O. is vested with the powers to levy penalty under Sec. 271(1)(c) of the Act, if in the course of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at such non-striking off the irrelevant charge in the notice cannot be characterised as merely a technical default, as the same clearly divesting the assessee of the statutory right of an opportunity of being heard and defend his case, would thus have a material bearing on the validity of the jurisdiction assumed by the A.O for imposing penalty in the hands of the assessee. 13. We have given a thoughtful consideration to the issue before us, and are of the considered view that a similar proposition had came up before the Hon'ble High Court of Karnataka in the case of CIT Vs. SSA"s Emerald Meadows (73 taxmann.com 241)(Kar), wherein the Hon'ble High Court following its earlier order in the case of CIT Vs. Manjunatha Cotton and Ginning Factory (2013) 359 ITR 565 (Kar) had held that where the notice issued by the A.O under Sec. 274 r.w Sec. 271(1)(c) does not specify the limb of Sec. 271(1)(c) for which the penalty proceedings had been initiated, i.e whether for "concealment of particulars of income" or "furnishing of inaccurate particulars", the same had to be held as bad in law. The "Special Leave Petition" ( for short "SLP") filed by the revenue against the aforesaid order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncealment of the particulars of income and furnishing of inaccurate particulars of income' have different connotations, it is imperative for the assessee to be made aware as to which of the two is being put against him for the purpose of levy of penalty u/s 271(1)(c) of the Act, so that the assessee can defend accordingly. It is in this background that one has to appreciate the preliminary plea of assessee which is based on the manner in which the notice u/s 274 r.w.s. 271(1)(c) of the Act dated 10.12.2010 has been issued to the assessee company. A copy of the said notice has been placed on record and the learned representative canvassed that the same has been issued by the Assessing Officer in a standard proforma, without striking out the irrelevant clause. In other words, the notice refers to both the limbs of Sec. 271(1)(c) of the Act, namely concealment of the particulars of income as well as furnishing of inaccurate particulars of income. Quite clearly, non-striking-off of the irrelevant limb in the said notice does not convey to the assessee as to which of the two charges it has to respond. The aforesaid infirmity in the notice has been sought to be demonstrated as a refl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mind by the Assessing Officer. Since the factual matrix in the present case conforms to the proposition laid down by the Hon'ble Supreme Court, we proceed to reject the arguments advanced by the Id. CIT-DR based on the observations of the Assessing Officer in the assessment order. Further, it is also noticeable that such proposition has been considered by the Hon'ble Bombay High Court also in the case of Shri Samson Perinchery, ITA Nos. 1154, 953, 1097& 1126 of 2014 dated 5.1.2017 (supra) and the decision of the Tribunal holding levy of penalty in such circumstance being bad, has been approved. 11. Apart from the aforesaid, the Id. CIT-DR made an argument based on the decision of the Hon'ble Bombay High Court in the case of Smt. Kaushalya & Others, 216 ITR 660 (Born.) to canvass support for his plea that non-striking off of the irrelevant portion of notice would not invalidate the imposition of penalty u/s 271(1)(c) of the Act. We have carefully considered the said argument set-up by the Id. CIT-DR and find that a similar issue had come up before our coordinate Bench in the case of Dr. Santa Milind Davare (supra). Our coordinate Bench, after considering the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... routine manner. Further the notice did not specify the charge for which the penalty notice was issued. Hence, in our view, the AG has failed to apply his mind at the time of issuing penalty notice to the assessee." 12. The aforesaid discussion clearly brings out as to the reasons why the parity of reasoning laid down by the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra) is to prevail. Following the decision of our coordinate Bench in the case of Dr. Santa Milind Davare (supra), we hereby reject the aforesaid argument of the Id. CIT-DR. 13. Apart from the aforesaid discussion, we may also refer to the one more seminal feature of this case which would demonstrate the importance of non-striking off of irrelevant clause in the notice by the Assessing Officer. As noted earlier, in the assessment order dated 10.12.2010 the Assessing Officer records that the penalty proceedings u/s 271(1)(c) of the Act are to be initiated for furnishing of inaccurate particulars of income. However, in the notice issued u/s 274 r.w.s. 271(1)(c) of the Act of even date, both the limbs of Sec. 271(1)(c) of the Act are reproduced in the proforma notice and the irrelevant clause has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in its hands, therefore, on the said count itself quash the penalty of Rs. 31,37,972/-imposed in the hands of the assessee. 15. We shall now advert to the validity of the penalty imposed by the A.O on merits, which was deleted by the CIT(A). We have deliberated at length on the facts involved in the case before us and find that the A.O acting on the information shared by the DIT (Inv.), Kolkata that the revelations in the course of the Search & seizure proceedings conducted in the case of Mr. Praveen Agarwal, Kolkata, an infamous entry operator, revealed that bogus bills of Rs. 17,63,705/- were issued to the assessee company, had on the said count reopened its case under Sec. 147 of the Act. We find that the assessee in compliance to the notice issued by the A.O under Sec. 148, dated 21.03.2014 had filed its "return of income" on 22.04.2014, wherein the entire amount of Rs. 93,22,558/- which was paid to Tuticorin Trexim Pvt. Ltd (now known as Makesworth Project Developer Pvt. Ltd.) during the year and claimed as an expense in the "Profit & loss a/c" was disallowed and the loss was revised at Rs. 1,95,00,840/-. The A.O accepted the aforesaid "return of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmodation entries received from Mr. Praveen Agarwal, but however, cannot remain oblivious of the fact that though the said information on the very face of it would justifiably form a basis for reopening the case, however, the said stand alone information could not be characterised as a concrete evidence to dislodge the genuineness and veracity of the transactions, as claimed by the assessee. We find that the assessee had throughout been canvassing that the disallowance of expenses of Rs. 93,22,558/- was made by it only with the purpose of avoiding protracted litigation on the matter, specifically in the backdrop of the fact that it had been suffering substantial losses on year to year basis and had clearly rebutted the unsubstantiated allegation of the revenue as regards the falsity of its claim. We further find substantial force in the contention of the assessee that the fact that it had during the year under consideration an assessed business loss of Rs. 5.67 crores, in itself rules out any reason on its part to have booked bogus expenses as alleged by the revenue. We have perused the facts available on record and find that though the revenue acting on the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to have debited bogus expense as alleged by the revenue, had however not been addressed and dislodged by the revenue on the basis of any concrete material, which could prove to the hilt that the explanation tendered by the assessee was not tenable. We thus are of the firm conviction that though the information received by the revenue from the Investigation wing, Kolkata would have justifiably formed a basis for reopening the case of the assessee, but however, as the revenue had failed to discharge its burden of proving that the assessee had furnished inaccurate particulars of its income or had concealed its income, and rather as a matter of fact had rested its conclusion on the unsubstantiated statement of a third party, viz. Sh. Parveen Agarwal and the fact that the assessee had voluntarily disallowed the expenses in its "return of income" filed in compliance to notice under Sec. 148, which we find as claimed by the assessee was done with the intent to avoid protracted litigation on the matter, therefore, no penalty on the said count could have been levied in its hands. We may herein observe that the judgment of the Hon'ble Supreme Court in the case of MAK Data P. Ltd. Vs. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red view that unlike the facts involved in the aforesaid case, in the case of the assessee before us the assessee had voluntarily in the return of income filed in compliance to notice received under Sec. 148 disallowed the payments made to M/s Tuticorin Trexim P. Ltd. We have deliberated on the facts and are of the considered view that though it remains as a matter of fact that the case of the assessee was reopened on the basis of the information received by the A.O from the DIT(Inv.), Kolkata that the Search & seizure proceedings conducted on Sh. Praveen Agarwal stated to have revealed that the assessee had taken accommodation entries in respect of commission expenses, but however, as observed by us hereinabove, it remains as a matter of fact that till date no concrete material had been placed on record by the A.O which could go to prove to the hilt that the assessee on the basis of the accommodation entries had booked bogus expenses. Rather, we find that the disallowance of expenses by the assessee was clearly explained by it to have been made with the purpose of avoiding protracted litigation, keeping in view the substantial losses which it had suffered during the year under con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the disallowance of the expenses made by the assessee in its return of income filed in compliance to notice issued under Sec. 148 was subsequent to the information received by the department from Investigation wing, Kolkata that the assessee was a beneficiary of the accommodation entries provided by Mr. Praveen Agarwal, but as observed by us hereinabove, the said allegation had not fructified into a concrete evidence which could prove to the hilt that the assessee had deflated its income by booking bogus expenses. We though at this stage may observe that there could be every probability that the disallowance of the expenses by the assessee in its "return of income" filed in compliance to notice under Sec. 148 could have been prompted by the fact that the information as had emerged in the course of the Search and seizure proceedings conducted on Mr. Praveen Agarwal was forwarded by the Investigation wing, Kolkata to the A.O, but however, are afraid that for imposing penalty under Sec. 271(1)(c), which as per the settled position of law is nothing short of quasi criminal proceedings, a very heavy onus is cast upon the revenue to conclusively prove that the assessee had concealed it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore parting, we may also observe that we are persuaded with the view taken by the CIT (A) that as the assessee had already disallowed the expenses of Rs. 93,22,558/- in the return of income filed in compliance to notice issued under Sec. 148 of the Act, which was accepted by the A.O, as such, therefore, in the absence of any addition or disallowance made in respect of the same by the A.O while framing the reassessment, no penalty under Sec. 271(1)(c) could have validly been made in the hands of the assessee. 16. We thus in the backdrop of our aforesaid observations are of the considered view that the A.O had erred both in law and facts of the case in imposing penalty under Sec. 271(1)(c) in the hands of the assessee. We thus in terms of our aforesaid observations and finding no infirmity in the order of the CIT(A), uphold the quashing of the penalty of Rs. 31,37,972/- imposed by the A.O under Sec. 271(1)(c) in the hands of the assessee. The Grounds of appeal No. 1 & 2 are dismissed in terms of our aforesaid observations. The Ground of appeal No. 3 being general is dismissed as not pressed. The appeal filed by the revenue is dismissed. ITA No. 7248/Mum/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier claimed by the assessee as an expenditure in its "books of account". 19. That as the assessee had voluntarily disallowed the amount of Rs. 1,94,56,957/- and revised the returned loss to Rs. 186,89,49,010/, therefore, no appeal against the order passed by the A.O was filed by the assessee before the CIT(A). 20. The A.O after the culmination of the assessment proceedings issued a "Show Cause" notice (for short "SCN") under Sec. 274 r.w. Sec. 271(1)(c) of the Act, dated 02.02.2015, calling upon the assessee to explain as to why penalty may not be imposed on it under Sec. 271(1)(c). The explanation furnished by the assessee did not find favour with the A.O, who being of the view that the assessee had furnished inaccurate particulars of its income as envisaged in Sec. 271(1)(c) in respect of the aforesaid amount of Rs. 1,95,49,596/-, therefore, imposed a penalty of Rs. 65,80,394/-. 21. Aggrieved, the assessee assailed the order of the A.O imposing penalty under Sec. 271(1)(c) before the CIT(A). The CIT (A) after deliberating on the facts of the case did find favour with the contentions of the assessee and deleted the penalty of Rs. 65,80,394/- imposed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken accommodation entries from M/s Tuticorin Trexim Pvt. Ltd. for Rs. 1,01,91,127/-, the case of the assessee was reopened by the A.O under Sec. 147 of the Act. The assessee in the return of income filed in compliance to notice issued under Sec. 148, voluntarily disallowed the payment of Rs. 1,01,91,127/- made to Tuticorin Trexim Pvt. Ltd. and revised the loss to Rs. 77,98,64,104/-. The A.O in the backdrop of the fact that the assessee had already disallowed the entire amount paid to Tuticorin Trexim Pvt. Ltd. (now known as Makesworth Project Developers Pvt. Ltd) in the "return of income" filed under Sec. 148 of the Act, therefore, accepted the same and did not make any further disallowance in its hands. The A.O while culminating the reassessment proceedings initiated penalty proceedings under Sec. 271(1)(c) of the Act for "furnishing of inaccurate particulars of income" by the assessee in respect of the aforesaid amount of Rs. 1,01,91,127/- which was earlier claimed by the assessee as an expenditure in its "books of account". 26. That as the assessee had voluntarily disallowed the amount of Rs. 1,01,91,127/- and revised the returned loss to Rs. 77 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly after the receipt of notice u/s. 148 and had the notice not been issued, the assessee would not have disclosed/ revised its return of income. 2. The appellant prays that the order of CIT (A) on the above ground be set aside and that of the Assessing Officer be restored. 3. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary." 32. Briefly stated, the facts of the case are that the assessee had filed its return of income for A.Y. 2010-11 on 29.09.2010, declaring loss of Rs. 109,29,46,273/-. Thereafter the assessee filed a revised return of income on 22.09.2011, declaring current year loss of Rs. 112,02,24,986/-. The assessment in the case of the assessee was framed under Sec. 143(3), vide order dated 28.03.2013 and the total loss under the normal provisions was determined at Rs. 112,03,24,986/- and the "book loss" under Sec. 115JB at Rs. 80,62,45,754/-. That on the basis of information received from the DIT(Inv.), Kolkata that the assessee had taken accommodation entries from M/s Tuticorin Trexim Pvt. Ltd. for Rs. 55,53,555/-, the case of the assessee was reopened by the A.O under Sec. 147 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue involved in the present appeal of the revenue remain the same, as against those which were involved in its appeal for A.Y 2007-08, viz. ITA No. 7249/Mum/2016 that had been adjudicated by us hereinabove, therefore, our order passed while disposing off the appeal of the revenue for A.Y 2007-08, viz. ITA No. 7249/Mum/2016 shall apply mutatis mutandis to the present appeal of the revenue for A.Y. 2010-11 in ITA No. 7246/Mum/2016. The Grounds of appeal Nos. 1 to 3 are dismissed in terms of our observations recorded while disposing off the Grounds of appeal No. 1 to 3 in the appeal of the revenue for A.Y 2007-08. 36. The appeal of the revenue is dismissed in terms of our aforesaid observations. ITA No. 7245/Mum/2016 AY: 2011-12 37. We shall now advert to the appeal of the revenue for A.Y 201112. The revenue assailing the order of the CIT (A) had raised before us the following grounds of appeal: "1. Whether on the facts and circumstances of the case and in law, the Ld. CIT (A) was right in deleting the penalty of Rs. 20,34,034/- levied u/s. 271(1)(c) of the I.T. Act, 1961 without appreciating the facts that had made the disallowance only afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luntarily disallowed the amount of Rs. 60,13,406/- and revised the returned loss to Rs. 289,22,28,400/- under the normal provisions and book loss under Sec. 115JB at Rs. 296,59,10,017/-, therefore, no appeal against the order passed by the A.O was filed by the assessee before the CIT(A). 41. The A.O after the culmination of the assessment proceedings issued a "Show Cause" notice (for short "SCN") under Sec. 274 r.w. Sec. 271(1)(c) of the Act, dated 02.02.2015 calling upon the assessee to explain as to why penalty may not be imposed on it under Sec. 271(1)(c). The explanation furnished by the assessee did not find favour with the A.O, who being of the view that as the assessee had furnished inaccurate particulars of its income as envisaged in Sec. 271(1)(c) in respect of the aforesaid amount of Rs. 60,13,406/-, therefore, imposed a penalty of Rs. 20,34,034/-. 42. Aggrieved, the assessee assailed the order of the A.O imposing penalty under Sec. 271(1)(c) before the CIT(A). The CIT (A) after deliberating on the facts of the case did find favour with the contentions of the assessee and deleted the penalty of Rs. 20,34,034/- imposed by the A.O. 43. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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