2018 (1) TMI 730

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....lating to penalty u/s 271(1)(c) of the Act, for the AY 2009-10. ITA No. 76/Hyd/2016 2. This appeal is directed against the order of CIT(A) - 5, Hyderabad, dated 30/10/2015 for the AY 2009-10 wherein the assessee has raised the following grounds of appeal: 1. On the facts and in the circumstances of the case, the order of the learned Commissioner of Income Tax (Appeals)-5, Hyderabad, dismissing the appeal of the Appellant is erroneous, illegal and unsustainable in law. 2. The Commissioner of Income Tax (Appeals) erred in not condoning the delay in filing the appeal and in not admitting the appeal. The Commissioner of Income Tax (Appeals) failed to appreciate that the mistake was bonafide in as much as the addition of unexplained cred....

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....filed on 21/10/2013, resulting into a delay of 653 days. 4.1 The assessee filed condonation petition stating the reasons for the said delay, which was extracted by CIT(A) at page 2 of his order. 4.2 The CIT(A) observed that it is obvious from the contents of condonation petition that there is no reason for delay in filing the appeal and the assessee is only narrating the proceedings of AY 2008-09 but did not give any reason for the delay in filing the appeal. The CIT(A) referring various case law on the issue of delay, dismissed the appeal of the assessee by holding that in the present case the cause of substantial justice would not be served by condoning the inordinate delay of 653 days, for which no cogent reason has been given. 5. Agg....

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....per opportunity of being heard to the assessee. ITA No. 1155/Hyd/2014 7. This appeal is directed against the order of CIT(A) - II, Hyderabad dated 21/03/2014 whereby he confirmed the penalty levied by the AO u/s 271(1)(c) of the Act. 8. Briefly, the facts of the case are that in the quantum assessment u/s 143(3), the AO made the following additions: a. Disallowance of cash payments u/s 40A(3) Rs. 1,73,00,000/- b. Disallowance of hire charges on tractors u/s 40(a)(ia) Rs. 50,85,000/- c. Disallowance of sundry creditors Rs. 2,43,36,140/- d. Unexplained credits Rs. 1,31,50,000/- e. Disallowance of unexplained expenditure Rs. 3,25,000/- No appeal was filed against the quantum assessment order. Thereafter, AO initiated penalt....

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....ble Supreme Court in the case of CIT Vs. NTPC, 229 ITR 393.: "On the facts and circumstances of the case) the penalty order passed by the Assessing Officer and partly upheld by CIT(A) is unsustainable on the facts of the present case and also in law for non-application of mind on part of Assessing Officer as the very basis i.e., penalty show cause notice does not specify whether the notice was for concealment of income or for furnishing of inaccurate particulars of income. " 12. As the said additional grounds are legal grounds, wherein, the facts are on record and facts do not require fresh investigation, following the decision of Hon'ble Supreme Court in the case of National Thermal Power Co., Limited Vs. CIT 229 ITR 383 (SC), we admit....

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....1(1)(c) was bad in law, as it did not specify under which limb of section 271(1)(c) penalty proceedings had been initiated, i.e. whether for concealment of particulars of income or furnishing of inaccurate particulars of income. 15.1 In the case under consideration, on perusal of the show cause notices issued by the Assessing Officer u/s 274 r.w.s. 271 of the IT Act, 1961, dated 30/12/2011, which is placed on record, it is seen that the Assessing Officer did not mention whether the notice is issued for concealment of income or for furnishing of inaccurate particulars of income. Therefore, as per the ratio laid down by the Hon'ble Supreme Court in the case of SSA's Emerald Meadows, the notice issued by the Assessing Officer is not valid and....