2012 (5) TMI 785

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.... and as such, even the order levying penalty under section 158BFA(2) of the Act was vitiated in law and therefore, unsustainable. 2.1 That mere fact that, such a contention was not raised in the assessment proceedings, the same could not have been made a basis to upheld the order of assessment and order of penalty, which were infact a nullity and, hence deemed to be quashed as such. 3. That the Ld. Commissioner of Income Tax (Appeals) has further failed to appreciate that, order levying penalty was otherwise vitiated in law since notice issued prior levying of penalty was wholly vague and non specific notice and therefore, order of penalty were not tenable. 4. That the Ld. Commissioner of Income Tax (Appeals) has further erred both in law and on facts in upholding the levy of penalty on the following sums in disregard of the detailed written submissions filed by the appellant, and the paper book placed no record: S.No. Nature Amount 1. Receipts from BCCI/DDCA/ Ranji Trophy 5,81,607/- 2. Receipts from Badiham Cricket Club UK 1,05,000/- 3. Receipts from M/s. Sanspareils Green Ltd. 1,00,000/- 4. Income From Quiz Prog....

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....osed income of the assessee by Ld. Commissioner of Income Tax (Appeals) in an order dated 29.11.2002 and furthermore, the balance sum of Rs. 3,10,978/- was not includible as income of the undisclosed income of the assessee as it was eligible to deduction under section 80L of the Act. 4.7 That lastly, the Ld. Commissioner of Income Tax (Appeals) has also erred both in law and on facts in levying penalty of Rs. 20,000/- on the basis of a loose paper found as a result of search without appreciating that there was no direct material which has been found either to allege or establish that any income of the appellant had been escaped assessment and not declared by the assessee. It is therefore, prayed that it be held that penalty levied is without jurisdiction and even otherwise, same is not in accordance with law. It is thus prayed that, penalty so levied of Rs. 7,22,086/- may kindly be deleted and appeal of the appellant be allowed." 3. At the outset, ld. counsel of the assessee submitted that he shall not be pressing the ground no. 2 pertaining to non-service of notice u/s. 143(2). Accordingly, this issue is dismissed as not pressed. 4. In this case penalty was....

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....rable cogency. Assessee was under a bonafide belief that this income is exempted on the basis of CBDT Instruction no. 1432. Substantial relief was also granted by the Ld. Commissioner of Income Tax (Appeals) on the basis of the same instructions. Hence, in our considered opinion, this is not a fit case for levy of penalty u/s. 158BFA(2). Assessee's counsel has also relied upon the decision 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 AO for any reason, the assessee will invite the penalty u/s 271(1)(c). This is clearly not the intendment of legislature. We find that assessee's c....

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....A(2).  (C). Receipts from M/s Sanspareils Green Ltd. - Rs. 1,00,000/- (i) Assessee has received Rs. 1 lakh representing receipts from M/s Sanspareils Green Ltd. Assessing Officer in this regard noted that the assessee has received Rs. 1 lkh from M/s Sanspareils Green Ltd. on 1.3.2000 as endorsement money. Assessing Officer noted that assessee has declared this income in his return of income for assessment year 2000-01 after the date of search. It has been noted that the date of search is 20.7.2000 and the due date of filing of return of income for assessment year 2000-01 is 30.6.2000. Assessing Officer did not accept the above contention of the assessee and made the addition of Rs. 1,00,000/- on the basis that similar receipt from M/s Sanspareils Green Land Ltd. pertaining to financial year 1995-96 was not disclosed. (ii) On appeal, Ld. Commissioner of Income Tax (Appeals) affirmed the addition. (iii) On this issue ld. counsel of the assessee stated that it was the assessee's case that assessee was outside India during the intervening period so he could not file return on time and it was only on this account that there was delay in filing th....