TaxTMI 
TaxTMI 
2019 (4) TMI 1526
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....ng the penalty by overlooking to the judgment of Hon'ble Supreme Court in the case of M/s SSA's Emerald Meadows Vs. CIT 242 Taxman 180 (SC). 4. The appellant craves leave to add, amend, alter and or vary and of the grounds of appeal before or at the time of hearing. The Penalty order being erroneous, illegal and arbitrary, the same may kindly be deleted." 2. The brief facts of the case are that assessment in this case was completed u/s. 143(3)/147 of the Income Tax Act, 1961 (in short "Act") vide order dated 14.3.2014 by making addition of Rs. 11,31,492/-. In this case the ACIT, CC-22, New Delhi had forwarded the information that assessee company had received accommodation entry amounting to Rs. 10 lakhs from M/s Galaxy Mines on 26.07.2005, i.e., during the FY 2005-06 relevant to assessment year 2006-07. During the course of survey u/s. 133A of the Act conducted at the business premises of Sh. SK Gupta by the Investigation Wing. Therefore, after recording reasons for initiation of proceedings u/s. 147, notice u/s. 148 of the Act dated 5.3.2013 was issued by the DCIT, Circle 18(1), New Delhi with the due approval of the Addl. CIT, Range-18, New Delhi as accorded u/s. 151 of the....
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.... 271(1 )(c) of the Act should not be levied in the case. However, there is no compliance in response to the same. AO further observed that no compliance to both the notices issued u/s 271(1)(c) of the Act clearly shows that the assessee has nothing to say / submit with regard to non declaration of true particulars of its income. AO further noted that in the case of MAX Data v. CIT (SC) 38 taxmann.com 448 - Under Explanation 1 to section 271(1)(c). It has been held that voluntary disclosure of concealed income does not absolve assessee from imposition of penalty u/s 271(1)(c) of the Act if the assessee fails to offer an explanation which is bona fide and proves that all the material facts have been disclosed. Under the circumstances of the case and on the basis of the facts available on record, AO held that the assessee had deliberately filed inaccurate particulars of its income with an intention to evade payment of taxes. This clearly shows the willful intention of the assessee to defraud tax. Therefore, the provisions of section 271(1)(c) are attracted in this case. Therefore, he held that the assessee had furnished inaccurate particulars of income and concealed the income in ord....
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....d that the additional ground raised is purely legal issue and the consequent penalty proceedings is also invalid. The contention of the assessee was however not acceptable for the reason that the additional ground being raised is not pertaining to penalty order and that in the present appeal, subject matter to be decided is relating to imposition of penalty and not the assessment order. I further note that it is settled law that legal ground has to be in relation to the issue and proceedings of the impugned order only and no indirect reference to any proceedings can be made a basis of legal objections. Further issue relates to validity of the penalty proceedings. It was contended that penalty notice issued u/s 274 r.w.S 271 does not satisfy the exact nature of fault whether concealment of income or furnishing of inaccurate particulars of income and therefore, in view of judgment in the case of CIT vs. SSA Emrald Meadaw (2016) 359 ITR 565, the penalty is invalid and therefore, penalty imposed be deleted. I note that Ld. CIT(A) has dealt this objection by observed that as has been decided by the Hon'ble Courts/Tribunals wherein note has been taken of the judgment in the case of SSA E....
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....014) 227 Taxman 253 (P & H) The Id. D.R relying on the aforesaid judicial pronouncements, submitted that as per the settled position of law, the objection raised by the Id. A.R during the course of hearing of the appeal as regards the validity of the jurisdiction assumed by the A.O. for imposing penalty 271(1)(c) was not admissible and thus no cognizance of the same may be drawn. Alternatively, and without prejudice to the objection raised to the admission of the challenge thrown by the Id. A.R to the validity of the assumption of jurisdiction by the A.O for imposing penalty under Sec. 271(1)(c), it was averred by the Id. D.R that even otherwise the failure on the part of the A.O to strike off the irrelevant default did not in any way affected the validity of the penalty imposed by the A.O under Sec. 271(1)(c). The Ld. D.R. in support of his said contention relied on the following judicial pronouncements:- (i) M/s Maharaj Garge & company vs. The Commissioner of Income Tax, Nagpur (IncomE Tax reference no. 21 of 2008, dated 22.08.2017) (ii) Commissioner of Income Tax v SMt. Kaushalaya & Others (1995) 21 (Bom.) (III) Earthmoving Equipment Service Corporation v DCIT 22(2) )Mum....
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....is then on the assessee to show otherwise, by cogent and reliable evidence. When the initial onus placed by the explanation, has been discharged by him. the onus shifts on the revenue to show that the amount in question constituted the income and not otherwise. [Para 7] Assessee has only stated that he had surrendered the additional sum with a view to avoid litigation, buy peace and to channelize the energy and resources towards productive work and to make amicable settlement with the income tax department. Statute does not recognize those types of defences under the Explanation 1 to section 27l(l)(c). It is trite law that the voluntary disclosure does not release the assessee from the mischief of penal proceedings under section 27l(l)(c). The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he has to be absolved from penalty'. [Para 7] The surrender of income on this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the Assessing Officer in the search conducted in the sister concern of the assessee. In that situation, it cannot be said that the surrender of income was vol....