TaxTMI 
TaxTMI 
2019 (8) TMI 802
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....cumstances of the case and in law, whether the learned CIT(A) erred in deleting the penalty without appreciating the facts that the AO has levied penalty on the concealment of income that came to light during the course of the survey proceedings u/s. 133A of the I.T. Act. 2. On the facts and in the circumstances of the case and in law, whether the learned CIT(A) erred in deleting the penalty overlooking the fact that only after the survey proceedings, the assessee was charged to tax on account of the capital gain earned by the assessee. 3. On the facts and in the circumstances of the case and in law, whether the learned CIT(A) erred in deleting the penalty without appreciating the fact that the AO has levied penalty only a....
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.... Penalty Proceedings u/s 271(1)(c) are separately initiated. 2.3 During penalty proceedings, show-cause notice u/s 274 r.w.s. 271 (1)(c) dated 25/03/2013 was issued to the assessee. Although the assessee contested the imposition of penalty, however, not satisfied with assessee's explanation, Ld. AO, vide paras 5 & 6 of penalty order dated 04/03/2016 levied impugned penalty by observing as under: - g) In view of the facts enumerated above and on considering relevant facts and circumstances of the case in a fair and objective manner it is concluded without doubt that the assessee has concealed particulars of income / has furnished inaccurate particulars within the meaning of explanation 1 to Section 271(1)(c) of the I T Act,....
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....erving as under: - Decision I have carefully considered the facts of the case and submissions of Ld. AR and decide the grounds of appeal hereunder. The ground no. 1.0, 1.1 and 1.2 relate to a common issue wherein the appellant disputed the levy of penalty, on technical reasons, stating that the AO has initiated the penalty in notice u/s.274 for "furnishing inaccurate particulars of income" whereas had levied the penalty for "Concealment of income" within the meaning of Explanation-1 to Sec.271(1)(c) of I.T.Act, 1961. The appellant furnished a copy of notice u/s.274 r.w.s.271 dated 25/03/2013 wherein the AO has ticked the relevant portion of "furnished inaccurate particulars of such income". The Explanation-1 to Se....
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.... 271(1)(c) of the Act, carry different meanings / connotations. Therefore, the satisfaction of the Assessing Officer with regard to only one of the two breaches mentioned under Section 271(1)(c) of the Act for initiation of penalty proceedings will not warrant/ permit penalty being imposed for the other breach. This is more so, as an Assessee would respond to the ground on which the penalty has been initiated/ notice issued. It must, therefore, follow that the order imposing penalty has to be made only on the ground of which the penalty proceedings has been initiated, and it cannot be on a fresh ground of which the Assessee has no notice." Similarly, Hon'ble Gujarat High Court in the case of M/s. New Sorathia Engineering Co. vs....
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....since there was no merit in SLP filed by revenue, same was liable to be dismissed - Held, yes [Para 2] [In favour of assessee]." Even the Mumbai ITAT in the case of Meherjee Cassinath Holdings Pvt.Ltd. vs. ACIT (ITAT Mumbai) pronounced on 29.04.2017 distinctly considered the seriousness of the penalty proceedings and held on page 14 para 14 as under - "In our view, the notice issued by the Assessing Officer u/s 274 r.w.s. 271(1)(c) of the Act dated 10.12.2010 is untenable as it suffers from the vice of non-application of mind having regard to the ratio of the judgment of the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra) as well as the judgment of the Hon'ble Bombay High Court in the case of Shri Sams....
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....inaccurate particulars of income" and not in respect of both charges. The AO, at para 6 of penalty order, levied the penalty on holding that -"Accordingly Rs. 2,25,73,110/- which represent addition made in assessment order which has been confirmed in before appeal is deemed to the income in respect of which inaccurate particulars of income have been furnished/particulars of income has been concealed. "Therefore, AO has not specified that under which charge the penalty has been levied. Thus, following the judicial pronouncements cited above I hold that penalty order should be clear and unambiguous as to under which limb the penalty is initiated and levied and fixing the dual charge is not permissible in law. Accordingly, the penalty levied u....