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TMI Blog2018 (10) TMI 2042X X X X Extracts X X X X X X X X Extracts X X X X ..... ties levying and confirming penalty under section 271 (1) (C) of the act. 02. The assessee has preferred the miscellaneous application stating that while passing the order the coordinate bench has not considered the ground number four ( 4 ) raised by the assessee in its appeal memo. It was stated that the above ground has been reproduced by the coordinate bench in its order at page number 22 which reads as under:- " 4. That the learned AO in the penalty proceedings has not given proper and adequate opportunity to appellant and examine the transactions with confirmations, passed the order in undue haste without any independent enquiry in penalty proceedings. The observations and the reasons recorded does not show any act of concealment of income or furnishing of inaccurate particulars of income." The miscellaneous application states that the bench has decided the penalty appeal of the assessee without considering the above ground and merely decided to issue based on the finding of the Ld AO in the assessment proceedings. The miscellaneous application further states that the assessee has specifically stated that the observations and the reasons recorded do not show any act of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the coordinate bench and therefore the impugned order confirming the penalty order of the lower authorities deserves to be recalled. 04. The learned departmental representative vehemently submitted that there is no error in the order of the coordinate bench. She submitted that Here the assessee is attempting for the review of the order of the coordinate bench. She therefore submitted that the miscellaneous application filed by the assessee deserves to be rejected. 05. We have carefully considered the rival contentions and perused the orders of the coordinate bench passed in ITA number 613/then/2013 for assessment year 2006 - 07. It is apparent that the grounds of appeal have been reproduced in the order of the coordinate bench at page number 22 of its order wherein the assessee specifically challenged the fact that the observations and reasons recorded by the Ld AO does not show any act of concealment of income or furnishing of inaccurate particulars of income. On perusal of the appeal file, it was also noted that assessee has submitted copies of the decision of the honourable Supreme Court and the honourable Karnataka High Court in case of SSA"S Emeralds Meadows (supra) . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not show any act of concealment of income or furnishing of incorrect particulars of income. 09. The learned authorized representative submitted that it is an established principle of law with respect to penalty under section 271 (1) (c) of the act that the Ld AO has to record a clear-cut satisfaction in the assessment order about the concealment of income or furnishing of inaccurate particulars of income. He further submitted that the assessee must also be served with a clear-cut notice under section 274 of the income tax act to show what is the charge against the assessee that is either of the concealment of income or of furnishing inaccurate particulars of income. He further submitted that if the charge is not specifically made in the notice, then the penalty could not be levied. He further submitted that in the assessment order while making addition, there must be a specific charge. He placed before us copy of the notice under section 274, issued by the learned assessing officer to the assessee dated 25/02/2011, wherein both the charges are specified in the notice and none of them has been struck off. He therefore submitted that in such circumstances the penalty under section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n charges in the notice under section 274 of the income tax act, but the charge is very specifically raised of concealment of income in the assessment order. It was further stated that penalty has also been levied for concealment of income only, she submitted that substances of the penalty must be seen rather than technicalities. She therefore submitted that there is no infirmity in the orders of the lower authorities on this point. 11. We have carefully considered the rival contentions and the orders of the lower authorities. Apparently, the notice under section 274, issued by the learned AO dated 25/02/2011 produced before us by the assessee clearly shows that the learned AO has failed to strike out one of the twin charges of "concealment of income" or "furnishing of inaccurate particulars of income". Furthermore, in the assessment order the penalty is initiated for concealment of income and in the penalty order it has been levied for furnishing inaccurate particulars of income. Further , it is apparent that at the time of initiation of the penalty by issuing the show cause notice there was no specific charge. At the time of passing the assessment order, the learned AO has raise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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