9911796707
TMI Blog2024 (8) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... lead further evidence in course of penalty proceedings. The Hon ble Supreme Court in case of T. Ashok Pai [ 2007 (5) TMI 199 - SUPREME COURT] has held that since burden of proof in penalty proceedings varies from that in the assessment proceedings, a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted, though a finding in the assessment proceeding constitutes good evidence in the penalty proceedings. In the penalty proceedings, thus, the authorities must consider the matter afresh as the question has to be considered from a different angle. We find that despite repeated request the AO has not supplied copy of the alleged statement recorded on oath where assessee admitted to have taken the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess Appeal Centre (NFAC), Delhi / Commissioner of Income Tax(Appeals) (in short, CIT(A) ), which in turn arises from the order of penalty levied u/s 271(1)(c) of the Act by Assessing Officer (in short, AO ) on 31.07.2018. The grounds of appeal raised by the assessee are as under:- 1. On facts and circumstances of the case as well as per law on the subject, the Ld CIT(A) has erred in confirming the action of Assessing Officer in levying penalty u/s 271(1)(c) when Assessing Officer has not specified in the notice u/s 274 r.w.s 271(1)(c) whether the penalty was leviable for concealment of income or for furnishing inaccurate particulars thereof. 2. On the facts and circumstances of the case as well as law on the subject, the Ld.CIT(A) has erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been dismissed by the Tribunal. In the meanwhile, the AO issued fresh show-cause notice for penalty u/s 271(1)(c) of the Act on 24.07.2018. In reply, assessee submitted that it had filed MA before Tribunal which is pending. The AO observed that assessee could not submit any concrete evidence regarding the unsecured loan and hence she has furnished inaccurate particulars of income. Further, since assessee has not filed appeal before the Hon ble High Court against the addition, AO was satisfied that default committed by assessee is punishable u/s 271(1)(c) of the Act. Accordingly, he levied penalty on the concealed income of Rs. 12,25,000/- at the minimum rate of 100% of the tax sought to be evaded, which comes to Rs. 4,09,053/-. In the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d inaccurate particulars of income thereby concealing the income . Therefore, in both assessment order and penalty notice, AO has not specified the particular limb on which penalty proceedings initiated. The Ld.AR of the assessee relied on the following decisions in support of above contention and urged that penalty proceedings are not valid (i) Dilip N. Shroff vs. JCIT case No.2746 of 2007 dated 18.05.2007 (SC); (ii) CIT vs. SSA S Emerald Meadows 73 taxmann.com 248 (SC); (iii) CIT vs. SSA S Emerald Meadows 73 taxmann.com 241 (Karn.); (iv) PCIT vs. Blackroak Securities Pvt. Ltd. 157 taxmann.com 564 (Del)); (v) PCIT vs. Jehangir H.C. Jehangir 155 taxmann.com 209 (Bom); (vi) CIT vs. Manjunatha Cotton Ginning Factory 359 ITR 565 (Karn.) and (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmed by CIT(A) should be sustained. 5. We have heard the submissions of both the parties and perused the materials on record. We have also deliberated on the decisions relied upon by the Ld.AR of the assessee. It is seen from the assessment order that addition of unsecured loan of Rs. 12,25,000/- received by the assessee was added u/s 68 of the Act based on the statement of the assessee u/s 131 of the Act that she had taken entries from the three parties because she was not having much capital at hand for her business. The Ld.AR of the assessee contended that no such statement was recorded and AO has not supplied copy of the statement despite the request made on four occasions vide letters dated 15.10.2013, 10.05.2016, 03.11.2017 and 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e caused to the interests of revenue if such statement had, in fact, been recorded. The assessee should have been supplied a copy of the said statement as per the principles of natural justice, which has not been followed in the case. Therefore, levy of penalty without supplying copy of the impugned statement and without eliciting reply of the assessee thereon is not in accordance with law. Be that as it may, the assessee has also stated that the impugned loans were subsequently repaid by the assessee. Such claim has not been rebutted by the Department. The Hon ble jurisdictional High Court in the case Ayachi Chandrashekhar Narsanghji (supra) has held that where department had accepted repayment of loan in subsequent year, no addition was t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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