2019 (1) TMI 592

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....n or disallowance. Ld. CIT(A) ought to have deleted penalty levied in absence of furnishing of inaccurate particulars or concealment of income." The issues involved in these cases are identical and thus the same are heard analogously and are being disposed of by a common order. ITA No.444/Ahd/2017 for A.Y. 2008-09 is taken as the lead case. 2. The brief facts leading to the case is this that during the enquiry conducted by the ADIT(Inv.)-II, Baroda, the assessee has disclosed his undisclosed income of Rs. 6,36,384/-. It was further noticed that the assessee has not filed any relevant return of income and therefore the case was reopened on 31.03.2015 by issuance of notice u/s 148 of the Act. In response to the said notice the assessee filed his return of income for the A.Y. 2008-09 on 16.06.2015 declaring his gross income at Rs. 6,36,380/- and net taxable income at Rs. 5,36,380/- along with agricultural income of Rs. 2,35,700/-. The assessment u/s 143(3) r.w.s. 147 thereafter was finalized on 22.06.2015 determining total income of the assessee at Rs. 5,36,384/-. The penalty proceeding was also initiated on the said issue for concealment of particulars of income. The revenue's ....

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.... written submissions dated 14.12.2014 made by the assessee stating that: "The assessee has paid the tax amount of the A.Y. 2008-09 before issuing notice by the revenue." Considering such submissions made by the assessee, the Learned AO passed order as follows: 4. I have duly gone thought the reply of the AR of the assessee vis-a-vis the fact of the case. The undersigned find that the reply of the AR of the assessee is untenable & not acceptable. It is undisputed fact that in spite having taxable income of Rs. 5,36,384/- the assessee had not voluntarily filed his relevant Return of income. Secondly, the assessee has paid the whole of taxes on his taxable income only after the Departmental efforts i.e. the enquiry conducted by the ADIT (Inv.)-II, Baroda. Furthermore, another undisputed fact of the case is that the assessee has filed his Return of Income on 16.06.2015 m consequence of the proceedings conducted u/s.148 of the Act. The finding of the aforesaid facts clearly reveals that the assessee has concealed his particulars of income to the extent of Rs. 5,36,384/-. Thus, from the totality of the prevalent facts & circumstances of the instant case, it ....

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....or furnished inaccurate particulars of such income, or (d) ........... He may direct that such person shall pay by way of penalty- Explanation 1.- Where in respect of any facts material to the computation of the total income of any person under this Act,- (A) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Commissioner to be false or (B) such person offers an explanation which he is not able to substantiate and I fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him], Then the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section be deemed to represent the income in respect of which particulars have been concealed." Here, the Ld. AO had not consider the last portion of the section 271(1), i.e., 'the amount added or disallowed in computing total income be deemed to represent the income in respect of which partic....

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....notice u/s 148 of the Act on the deceased which is admittedly bad in law, the penalty proceeding ought to have been dropped by the Learned AO. The judgment on the similar set of facts as relied upon by the Learned Counsel appearing for the assessee has also been taken care of by us. The penalty cannot be levied on the legal representatives when a assessee is died well before filing of assessment in question as already been discussed and upheld by the said judgment in favour of the assessee. The relevant portion whereof is narrated herein below: 5. We have heard both sides and perused the case files. Relevant facts stands narrated in the preceding paragraphs. It has come on record that the assessee expired well before issuance of section 153A notice (supra). The appellant is widow/legal representative of the deceased-assessee. The authorities below have imposed the impugned penalties on her. We find that section 159 of the Act prescribes liability of an assessee's legal representatives as under: "159. (1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner....