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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 ..... ts 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 of penalty under section 274 r.w.s 271(1)(c) dated 24/07/2013 is vague and defective since, it does not specify the limb under which penalty under section 271(1)(c) was initiated. 4. Whether on the facts and in law, the learned CIT(A) erred in not appreciating that the assessee had offered an explanation that, the credit/cash entries in the bank account perta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditiously prepared the appeal and transmitted the necessary documents to the assessee for signature. Due to procedural requirements and logistical considerations, the completion of this process incurred a considerable amount of time. Consequently, the appeal is being filed on 24 May 2024, resulting in a delay of 40 days. E. The assessee prays that, the delay of 40 days be condoned in light of aforesaid circumstances. That there was no malafide intention on assessee's part for delay in filing the appeal. In view of above it is submitted that 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 147 of the Act and restricted the addition to Rs. 16,97,990, on account of unexplained cash credit under section 68 of the Act for want of supporting documentary evidences. The Assessing Officer also initiated penalty proceedings under section 271(1)(c) of the Act. 6. During the penalty proceedings, the assessee reiterated his explanation and submitted that he had accepted the addition and opted to co-operate with the Department to avoid further litigation. The Assessing Officer did not accept assessee's explanation and levied the penalty. 7. On appeal, the learned CIT(A) confirmed the penalty levied by the Assessing Officer. The learned CIT(A) held as under:- "Determination & Decision: 6. All the notices were delivered. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cash deposits pertain to the past savings or accumulated agricultural income However this contention of the appellant is without any concrete documentary evidence So the claim of the appellant cannot be accepted on this issue and it cannot be said that the penalty was not rightly levied by the A.O. In addition to the above, the appellant has also raised issue of non striking of any limb in penalty notice whether it is concealment/ inaccurate particulars. Again this stand of the appellant is not right as in the penalty notice the AO has ticked Concealment of income making it clear as to which limb the penalty notice pertains to. In view of the above facts, the penalty levied by the A.O. is hereby confirmed." 8. At the very outset, we fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned A.R. submitted that penalty show cause notice was also vague and relevant limb was not marked/ struck off. The assessee had raised the legal argument before learned CIT(A), citing the Hon'ble Bombay High Court decision in Mr. Mohd. Farhan Shaikh v. ACIT (Tax Appeal No.51 and 57 of 2012 dated 11/03/2021). The learned CIT(A) did not find any defects in the explanation offered by the assessee for explaining cash deposits but upheld penalty in a routine and mechanical manner without any fruitful discussion. He did not bother to refer to the notices where relevant portion has not been struck off. Upon consideration of the overall facts and circumstances, it is evident that the assessee did offer an explanation which has been found bona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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