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TMI Blog2025 (3) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, we will be very justified in exercising discretion in the matter to condone the delay. Two other factors which persuaded us to do so are that three appeals, namely, ITAT 105/2015, ITAT 107/2015 and ITAT 108/2015, appearing in the supplementary list today, were dismissed by the Division Bench of this Court by order dated 7th August, 2015. However, at that stage, one other appeal filed by the assessee was already admitted, namely ITA 21 of 2015. This appears to have not been brought to the notice of the Hon'ble Division Bench. The assesssee carried the matter in appeal to the Hon'ble Supreme Court in SLP(C) No. 3229 and No. 3221 of 2016 and the Hon'ble Supreme Court by order dated 14th March, 2016 took note of the submissions made on behalf of the assessee that against the very same impugned order passed by the Income Tax Appellate Tribunal, High Court had issued notice in the connected matter. Therefore, the assessee was given liberty to point out the same before this Court by filing an application for review. In terms of the liberty granted, review applications have been filed. 3. The second issue which convinced us to exercise discretion is the fact that another appeal fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case, on the alleged ground that the Appellant Foundation had concealed its income and/or furnished inaccurate particulars of its income in respect of the assessment year 2011-12? (ii) Whether the Order dated 24th June, 2015 passed by the Tribunal upholding the levy of penalty of Rs. 43,56,900, in the instant case of the Appellant Foundation in respect of the assessment year 2011-12 is wholly erroneous in law, against the facts and evidences on record, wholly baseless, unreasonable and/or otherwise perverse?" 10. Upon admission the Department has assigned the number ITA 21/2015. 11. The other three appeals, namely, ITAT 105, 107 and 108/2015 were heard by the Division Bench and by judgment dated August 7, 2015 the appeals were dismissed on the ground that no substantial question of law arises for consideration. This order was put to challenge before the Hon'ble Supreme Court in SLP(C) No. 3229-3231 of 2016 and it was brought to the notice of the Hon'ble Supreme Court that a connected appeal, namely, ITAT 106/2015 has already been admitted which arises out of the common order passed by the Tribunal and therefore the Division Bench could not have dismissed the three o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CIT Vs. Manjunatha Cotton & Ginning Factory [2013] 35 taxmann.com 250/218. Apart from the decision in the case of CIT Vs. SSA's Emerald Meadows [2016] 73 taxmann.com 241 (Karnataka) which was upheld by the Hon'ble Supreme Court in CIT Vs. SSA's Emerald Meadows [2016] 73 taxmann.com 248/242. Similar view was taken by the Hon'ble Supreme Court in Principal Commissioner of Income Tax Vs. Unitech Reliable Projects (P.) Ltd. [2024] 166 taxmann.com 135 (SC) and Principal Commissioner of Income Tax (Central) Vs. Golden Peace Hotels and Resorts (P.) Ltd. [2021] 124 taxmann.com 249 (SC). We have also taken note of the decision of the Division Bench of this Court in Principal CIT-1, Kolkata Vs. Robbs Traders & Finance Pvt. Ltd. [ITAT/226/2024 & IA No.GA/2/2024] dated 20th December, 2024 and also the decision of the High Court of Judicature at Madras in the case of Commissioner of Income Tax, Chennai - IV Vs. M/s. Gem Granites (Karnataka), Tax Case (Appeal) No. 504 of 2009 dated 12th November, 2013 and the relevant paragraphs of the decision are quoted hereinbelow : "10. The Hon'ble Supreme Court in the case of Union of India vs. Rajasthan Spinning and Weaving Mills reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment of goods, it considered it as a good ground for cancellation of penalty, when the explanation on the differential amount was given by the assessee that the entries were made in the account and the Accountant had not made the correct entry. 11. In a recent decision of the Hon'ble Supreme Court in Civil Appeal No. 9772 of 2013, dated 30.10.2013 (Mak Data P. Ltd., vs. Commissioner of Income Tax-II), the Hon'ble Supreme Court while considering the Explanation to Section 271 (1), held that the question would be whether the assessee had offered an explanation for concealment of particulars of income or furnishing inaccurate particulars of income and the Explanation to Section 271 (1) raises a presumption of concealment, when a difference is noticed by the Assessing Officer between the reported and assessed income. The burden is then on the assessee to show otherwise, by cogent and reliable evidence and when the initial onus placed by the explanation, has been discharged by the assessee, the onus shifts on the Revenue to show that the amount in question constituted their income and not otherwise. ........" 13. The learned advocate appearing for the appellant/assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -11-2021]. As pointed out earlier, the show cause notice issued under Section 274 read with Section 271 of the Act did not furnish any particulars and all the relevant columns have been left blank. Thus, by applying the legal position in the aforementioned decision, this court has no hesitation to hold that the show cause notice was bad in law consequently the initiation of penalty proceedings is vitiated." 15. Thus, for the above reasons, the appeals filed by the assessee are allowed and the substantial questions of law are answered in favour of the assessee. 16. Leave is granted to the assessee to file vakalatnama in the department. 17. It is submitted by the learned senior standing counsel for the Department that the panel of the learned standing counsel has expired on 9th March, 2025 and further order is awaited. By an order dated 5th March, 2025, we directed Mr. Smarajit Roy Chowdhury and Mr. Soumen Bhattacharjee, learned standing counsel to appear on behalf of the Department. Considering the fact that the cases are of the year 2015 and there was a direction issued by the Hon'ble Supreme Court directing the assessee to file the review, which has been filed, therefore the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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