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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 ..... Samson Perincherry [ 2017 (1) TMI 1292 - BOMBAY HIGH COURT ] Penalty levied by the learned AO u/s 271 (1) (c) of the act is not sustainable. Accordingly, Ground of the appeal of the assessee is allowed. - KUM. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For the Assessee : Mr. Ajay Wadhwa, Advocate For the Revenue : Ms. Ashima Neb, Sr DR ORDER PER PRASHANT MAHARISHI, A. M. 01. This Miscellaneous Application under section 254 (2) of The Income Tax Act, 1961 ( the Act ) is filed by the assessee for rectification of mistake apparent in the order dated 28/3/2018 passed by the coordinate bench in ITA No 613/Del/2013 For Assessment Year 2006 07. The above order was passed in appeal filed by the assessee against the order of the Ld. Commissioner (Appeals) XI, New Delhi ( the ld CIT (A) ) dated 31 December 2012 wherein the penalty of ₹ 16.83 lakhs levied by the Income tax Officer Ward 8 (1), New Delhi ( The Ld. AO, AO ) vide order dated 31/3/2011 passed under section 271 (1) (c) of the Act was confirmed. The coordinate bench also confirmed the orders of the lower authorities levying and confirming penalty under section 271 (1) (C) of the act. 02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the honourable Supreme Court in case of Honda Siel power products limited versus CIT [2007] 295 ITR 499 (SC) and decision of the honourable Delhi High Court in case of CIT versus V.L.S. Finance Ltd [2009] 310 ITR 224 (del) . Several other judicial precedents supporting the above view were also mentioned in the miscellaneous application. Therefore it is submitted that the order dated 28/3/2018 passed by the coordinate bench deserves to be recalled so that decision on the ground relating to the satisfaction with respect to ground number four (4) raised by the assessee in appeal memo can be considered and decided . It is further stated that the error is a jurisdictional error and goes to the root of the matter. 03. On the date of hearing, the learned authorized representative reiterated the submissions made in the miscellaneous application. He further stated that binding decisions submitted before the coordinate bench in the appeal proceedings were not at all considered. He submitted that ground number four was not at all decided. He therefore submitted that there is an apparent error in the order of the coordinate bench and therefore the impugned order confirming the penalty or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he face of the record. In view of the above facts, it is apparent that there is a non consideration of the ground of appeal raised by the assessee in appeal memo as well as the non consideration of decisions cited by assessee during the course of hearing resulted into error apparent on the record. Hence, we recall the order passed by the coordinate bench in ITA number 613/Del/2013. 06. Accordingly, miscellaneous application of the assessee succeeds for fresh adjudication on ground number 4 of the appeal and it is allowed. 07. As the only ground of appeal is required to be decided in the recalled appeal of the assessee pursuant to our order in miscellaneous application is ground no 4, as requested by the parties, we also take up the solitary ground of appeal, which was not decided in that appeal. 08. It is the claim of the assessee that ground number 4 of the appeal challenges that there was no adequate opportunity to the appellant for examination of the transaction and the penalty order is passed by the learned AO in undue haste and Further, the observations and reasons recorded does not show any act of concealment of income or furnishing of incorrect particulars of income. 09. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of income, whereas in penalty order, same is levied for furnishing inaccurate particulars of the income. He further submitted that even in the show cause notice issued it has been demonstrated that there is no clear-cut charge levied by the AO. He therefore submitted that issue is squarely covered in favour of the assessee by several decisions of honourable Karnataka High Court and the decision of the honourable Bombay High Court as in absence of any specific charges penalty u/s 271 (1) ( c ) of the act is not susutainable. He therefore submitted that penalty levied by the learned AO and confirmed by the learned commissioner appeals requires to be deleted. 10. The learned departmental representative vehemently supported the order of the learned AO and the learned commissioner appeals. She submitted that assessee has deliberately furnished the false bank statements of the creditors and therefore the penalty under section 271 (1) of the income tax has been correctly levied by the learned AO. It was further stated by her that though the learned AO has not struck of any of the twin charges in the notice under section 274 of the income tax act, but the charge is very specifically rais ..... X X X X Extracts X X X X X X X X Extracts X X X X
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