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TMI Blog2024 (12) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... which is of prime importance is altogether absent. The impugned order passed by the learned CIT(A) has merely echoed the order passed by the AO and the same ergo is fit to be jettisoned, thus provisions of section 271(1)(c) are not attracted in this case - Decided in favour of assessee. - Shri V. Durga Rao, Judicial Member And Shri K.M. Roy, Accountant, Member For the Assessee : Shri Abhay Agrawal For the Revenue : Shri Abhay Y. Marathe ORDER PER K.M. ROY, A.M. This appeal by the assessee is against the impugned order dated 14/02/2024, passed by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [ learned CIT(A) ], for the assessment year 2008 09, confirming penalty under section 271(1)(c) of the Income Tax Act, 1961 ( the Act ) levied by the Assessing Officer. 2. In its appeal, the assessee has raised following grounds: 1. Whether on the facts and in law, the order passed by learned CIT(A) u/s 250 of the Act is bad in law. 2. Whether on the facts and in law, the learned CIT(A) erred in upholding action of learned AO in levying penalty under section 271(1)(c) of Rs. 5,48,421/-. 3. Whether on the facts and in law, the notice issued for levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was a bonafide lapse in delay in filing the appeal before your Honour. Hence, there is an unintentional delay in filing the appeal before your Honour. By delaying the filing of appeal, no undue benefit or advantage is taken by the assessee. Accordingly. in the interest of justice, the assessee wishes to challenge the assessment order passed by the learned CIT(A) by way of appeal filed before your Honour with a request for condonation of delay. In view of this, it is prayed that the delay of 4 days may kindly be condoned in order to render the justice. 4. Being satisfied that there is a sufficient and reasonable cause, we condone the delay. Now we proceed to decide the appeal on merit. 5. Facts in Brief: The assessee was engaged in the activity as a contractor. Initially, for the year under consideration, the assessee did not file his return of income. During the assessment proceedings, the Assessing Officer found that the assessee had deposited cash aggregating to ₹ 43,72,390, in Savings Bank Account in Khamgaon Urban Co operative Bank Ltd., Buldhana Branch, Buldhana. Accordingly, the assessee s case was re opened under section 147 of the Act and statutory notices were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified, unwarranted, and bad in law (Copy of assessment order is enclosed as Attachment 1). 2. Without prejudice to the submission on merits as above, the assessee submits that, under the facts circumstances, it cannot be said that the assessee had not offered an explanation with respect to the cash deposits made. The assessee did offer an explanation which was not accepted by learned AO. However, the same was not accepted by the learned AO and hence the addition was made. Thus, under such facts, penalty should not be levied u/s 271(1)(c). Reliance is placed on following: Penalty is discretionary, not automatic and has to be exercised judicially The Supreme Court had, in the case of Hindustan Steel Ltd. v. State of Orissa [1972] 83 ITR 26 held that (Copy enclosed at Attachment 2): Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. 3. Without prejudice to the above, the Assessee submits that, the notice issued for levy of penalty under section 274 r.w.s 271 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has been invoked. Para 6 and 7 of the order dated 25/03/2014, is reproduced below: 6. The assessee is 55 year age matured person residing in District place and performing contract work for 7 Agencies. For the financial year under consideration the assessee was not holding a status as Purely Agriculturist . In this situation assessee out to have calculated his tax liability and file the return of accordingly. Whereas assessee acquired the PAN on 12/03/2013. The addition of Rs. 16,97,990/- is made as assessee failed to explain the source of cash deposit. Thus, the assessee's reply that cash deposited have been explained by him and addition is made for non of A. O. is untrue. There is no reason with the assessee for non filling of return of income, non acquiring of PAN and explanation given by the assessee for non levy of penalty is not acceptable. With the above remarks, I am satisfied that this is the fit case for levy of penalty u/s. 271(1)(c) explanation 2 3 for tax on total income assessed. 9. The Assessing Officer has not clearly established whether the penalty has been levied on account of concealment of income or for furnishing of inaccurate particulars of income. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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