TaxTMI 
TaxTMI 
TaxTMI 
2012 (5) TMI 785
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....ion 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 Programme 3,000/- 5. Income from salary and interest treated as undisclosed return. 3,90,867/- 6. Addi....
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....ncome 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 levied u/s. 158BFA by the Assessing Officer on the following income and treated the same as undisclosed/concealed income. S.No. Nature Amount 1. Receipts from BCCI/DDCA/Ranji Trophy 5,81....
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....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 case draws supports from the above case law and we hold that the penalty on this account is not leviable. (B). Receipts from Badiham Cricket Club, UK - (i) On this issue during the course of search, certain documents were found marked as pages 1 to 4 of Annexure A-2 which contained ....
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..... 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 the appeal. Ld. counsel of the assessee submitted that the delay in filing of return of income cannot be a basis for levy of penalty. We have heard both the counsel and perused the records. We find that it is the submission of the assessee that assessee was outside India and hence, he was no in a position to file the return in due time. This ....