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TMI Blog2025 (1) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... from (a) to (f) the assessee s case fell so as to impose the penalty for misreporting of income. At the most, the case was a case of under reporting of income in the first place. Sub-section (6) of section 270A also excludes cases of under-reported income where the assessee s explanation is found to be bona fide. Since the Ld. CIT(A) has gone by the procedural requirement while the assessee had duly complied with the substantive requirement, and neither in the order of the Ld. AO nor in the order of the Ld. CIT(A) a case of mis-reporting of income has been made out and higher amount of penalty has been imposed, hence, in the interest of justice if the order of the Ld. CIT(A) is set aside and the issue is remitted back to the file of Ld. CIT(A) to decide whether filing of Form 68 could be dispensed with and immunity could be granted when the assessee had paid the taxes, not further contested the order of the Ld. AO and had applied for immunity from imposing of penalty on plain paper. Order to pass a speaking order as to whether it is a case of mis-reporting of income and which of the clauses of section 270A(9) of the Act, if any is attracted for arriving at his decision. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the case, the Ld. AO, CIT(A) ought to have cancelled the penalty order of the Ld. AO as the same had been passed without specifying any specific charge which was incumbent on the Ld. AO. 7. That the appellant craves permission to add, amend, alter or vary all or any of the ground of appeal on or before the date of hearing of the appeal. 3. Brief facts of the case are that the case of the assessee was selected on the basis of Rules/parameter thereto approved by the Board under Risk Management System (RMS) for identifying potential cases for action u/s 148 of the Act, where the return of income has not been filed for the relevant assessment year. On perusal of Form No. 61A (Statement of Specified Financial Transactions u/s 285BA(1) of the Act) furnished by the Central Bank of India, it was noticed that the assessee had deposited and withdrawn cash from the current account maintained with the Central Bank of India for the period 2017-18 relevant to the AY 2018-19. The assessee had entered into financial transactions of the value of Rs. 1,03,19,130/- being cash deposited and cash of Rs. 15,87,000/- was withdrawn during the FY 2017-18. However, the assessee failed to furnish the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions and even beyond the time limit. Even if, you had filed the application for immunity after the time limit prescribed under the provisions, that would also have not been considered. The provisions state that if a person wants to file application for immunity from penalty proceedings, he has to file application for waiving off within the period of the one month from the date the end of the month in which the order referred to in clause (a) of sub-section (1) of u/s 270AA of the I.T. Act, has been received. In this regard, you are requested to submit whether an application for waiving off/immunity has been filed or not along with documentary evidences by 17.08.2023 Positively, as Penalty Proceedings are going to be barred by limitation on 31.08.2023. 3.3. The assessee did not make any further submission, therefore, penalty of Rs. 1,78,460/- being the minimum penalty leviable for mis-reporting of the income was imposed. 3.4. Aggrieved with the penalty order, the assessee filed an appeal before Ld. CIT(A), which was dismissed and the relevant extract from the order of the Ld. CIT(A) is as under: 5.1. The appellant has raised a total of three grounds of appeal in Appeal Memo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order and in the show-cause notice u/s 274 r.w.s. 270A has not specified the offence committed by him under sub-clause of Section 270A(9) and there is no mention of specific violation in the penalty order. Hence, the show-cause issued was not valid and hence the penalty order is unsustainable in law. The contention of the appellant in this regard cannot be accepted for the reason that AO in the assessment order has specifically mentioned that penalty proceedings were initiated for mis-reporting of income. The appellant in the instant case failed to file an application in Form 68 before the AO to grant immunity from imposition of penalty u/s section 270A. The appellant during the course of penalty proceedings failed to avail the opportunities provided by the AO for submitting proper documentary evidences. Hence, the claim of the appellant that the order imposing penalty on the basis of invalid initiation in the assessment order is devoid of any merit and liable to be dismissed. Accordingly, the grounds raised in the context are dismissed. 3.5. Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal. Before us, the Ld. AR argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the end of the month in which the application under sub-section (1) is received, pass an order accepting or rejecting such application: Provided that no order rejecting the application shall be passed unless the assessee has been given an opportunity of being heard. (5) The order made under sub-section (4) shall be final. (6) No appeal under 98[section 246 or] section 246A or an application for revision under section 264 shall be admissible against the order of assessment or reassessment, referred to in clause (a) of sub-section (1), in a case where an order under sub-section (4) has been made accepting the application. 4.1. Since the required Form No. 68 was not filed before the Ld. AO, the Ld. CIT(A) confirmed the penalty imposed by the Ld. AO. However, the Ld. CIT(A) has not appreciated the fact that the assessee had substantively complied with the conditions specified u/s 270AA, not contested the assessment order further and had paid the tax. Hence, the Ld. CIT(A) has not considered the fact whether for mere non-filing of Form No. 68 but otherwise making the application on a plain paper for waiver of penalty and fulfilling the substantive conditions, the immunity provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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