TaxTMI 
TaxTMI 
2018 (6) TMI 1116
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....09-10. 2. Brief facts are, for the assessment year under dispute the assessee filed its return of income on 30th September 2009, declaring nil income. During the assessment proceedings, the Assessing Officer on verifying the return of income filed by the assessee found that against the rental income offered under the head "Income From Business and Profession" amounting to Rs. 1,21,78,644, the assessee has claimed expenditure of Rs. 1,01,29,908. After calling for details of expenditure claimed by the assessee and verifying them, the Assessing Officer disallowed expenditure to the tune of Rs. 41,71,036, claimed under various heads and accordingly he completed the assessment under section 143(3) of the Act determining the total income at Rs....
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....nalty proceedings by stating that provisions of section 271(1)(c) of the Act are not attracted, however, the Assessing Officer passed an order on 30th March 2015, imposing penalty of Rs. 12,88,849 under section 271(1)(c) of the Act. Being aggrieved of the penalty order so passed, assessee preferred appeal before the first appellate authority. However, the learned Commissioner (Appeals) upheld the penalty imposed under section 271(1)(c) of the Act. 3. The learned Authorised Representative contesting the imposition of penalty under section 271(1)(c) of the Act submitted that the penalty order is invalid primarily for the reason that on 30thMarch 2015, the date on which the Assessing Officer passed the impugned penalty order, the original a....
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....alty proceedings under section 271(1)(c) of the Act in respect of the same income, which is not permissible under the Act. The learned Authorised Representative submitted, since, at the time of imposition of penalty under section 271(1)(c) of the Act the original assessment order was not in existence the Assessing Officer had no jurisdiction to impose penalty. In support of such contention, the learned Authorised Representative relied upon the following decisions:- i) K.C. Builders v/s ACIT, [2004] 265 ITR 562; and ii) CIT v/s S.M.J. Builders [2003] 262 ITR 60 Bom. 4. Without prejudice to the aforesaid submissions, the learned Authorised Representative submitted, in the show cause notice dated 7th December 2011, issued ....
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....come filed for the assessment year the assessee had offered the rental income received as income under the head "Business". While completing the original assessment under section 143(3) of the Act on 7th December 2011, the Assessing Officer, though, accepted assessee's claim of business income, however, out of the total expenditure claimed of Rs. 1,01,29,908, the Assessing Officer disallowed part of amounting to Rs. 41,71,036. It also appears, though, the assessee challenged the aforesaid disallowance before the learned Commissioner (Appeals), however, subsequently the appeal was withdrawn. Thus, the assessee accepted the disallowance made by the Assessing Officer. Subsequently, the learned Commissioner in exercise of power conferred under ....
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....4th November 2015 is not material considering the fact that it has to be seen what is the status of the original assessment order on the date penalty order was passed by the Assessing Officer. Since, on the date of penalty order, the original assessment order under section 143(3) of the Act was not in existence, the impugned penalty order is also invalid. For this reason, the penalty order passed under section 271(1)(c) of the Act is legally unsustainable. 7. Even otherwise also, though, the Assessing Officer has imposed penalty under section 271(1)(c) of the Act alleging furnishing of inaccurate particulars of income, however, in the show cause notice dated 7th December 2011 issued under section 274 r/w 271(1)(c) of the Act the Assessin....