TaxTMI 
TaxTMI 
2013 (10) TMI 692
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....hat on the facts and circumstances of the case and in law the Ld. CIT(A) erred in upholding the penalty order in spite of the fact that the said penalty order does not record a categorical finding as to whether the penalty has been levied for filing inaccurate particulars of income or concealment of income. iii) That on the facts and circumstances of the case without prejudice to the preceding ground of appeal the Ld. CIT(A) was not justified in upholding the imposition of penalty aggregating Rs. 1,75,214/- even on merits. iv) That the appellant craves lave to add, alter, amend, modify any of the grounds of appeal at the time of hearing or earlier. 3. In this case information was received that during the previous year assessee was ....
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....75,214/- was levied. 4. Upon assessee's appeal Ld. CIT(A) affirmed the Assessing Officer's action. Assessee has contended before the Ld. CIT(A) that Assessing Officer has not recorded any categorical finding as to whether this a case of concealment of income or furnishing of inaccurate particulars of income. Ld. CIT(A) in this regard has held that furnishing of inaccurate particulars of income or concealing the true particulars of income are one and the same thing. Hence, he rejected this contention of the assessee also. 5. Against the above order the Assessee is in appeal before us. 6. We have heard both the counsel and perused the records. We find that in this case the assessee has showed the sub-rental income under the head inco....
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....rants. ii) To operate, manage and own hotels, tourist, resorts, inns, lodging houses catering establishments and restaurants. iii) To provide technical, educational, management, maintenance and marketing services to hotels, tourist resorts, inns, lodgings houses, catering and housing establishments and restaurants. iv) To carry on the business of construction of hotels, resort, to renovate, to take on rent and to run the business of hoteliers, to provide on rent the space in parts or in whole in the hotel, motel and resort. v) To do the consultancy business in the fields as specified in the above object clauses (1) to (4) of main clause III (A)." From the above, it is the contention of the assessee that income from subleasing....
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.... of penalty u/s. 271(1)(c). 6.3 In this regard, we place reliance upon the Hon'ble Apex Court decision in the case of CIT vs. Reliance Petro Products Ltd. in Civil Appeal No. 2463 of 2010. In this case vide order dated 17.3.2010 it has been held that the law laid down in the Dilip Sheroff case 291 ITR 519 (SC) as to the meaning of word 'concealment' and 'inaccurate' continues to be a good law because what was overruled in the Dharmender Textile case was only that part in Dilip Sheroff case where it was held that mensrea was a essential requirement of penalty u/s 271(1)(c). The Hon'ble Apex Court also observed that if the contention of the revenue is accepted then in case of every return where the claim is not accepted by the Assessing Of....
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....nt of income by the assessee or whether any inaccurate particulars of such income has been furnished by the assessee. In this regard, ld. Counsel of the assessee has submitted that in such a situation it has been expounded that assessee should not be visited with the rigors of penalty u/s. 271(1)(c). For this proposition, Ld. Counsel of the assessee has referred to the Hon'ble Gujarat High Court decision in the case of New Sorathia Engg. Co. vs, C.I.T. 155 Taxmann 513 (Guj) and also C.I.T. vs. Manu Engineering Works 122 ITR 306 (Guj). We find that in this case assessee has duly taken above arguments that Assessing Officer has not specified as to whether there is concealment of income or whether it is furnishing of inaccurate particulars of ....
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....nding as to whether there was concealment of income by the assessee or whether inaccurate particulars of such income have been furnished by the assessee. In this case, we find that the Assessing Officer has not done so and the Ld. CIT(A) has held that both the terms amount to one and same thing. This in our considered opinion, is not in accordance with ratio emanating from the above case laws. Hence, on the anvil of the above case laws also in this case penalty u/s. 271(1)(c) is not leviable. 6.6 As regards the case law relied by the Ld. CIT(A) which were also referred by the Ld. Departmental Representative, we find that they are not applicable on the facts of the case In the case of C.I.T. vs. Escrots Finance Ltd. 328 ITR 44, it was hel....