2019 (8) TMI 1422

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nience. 2. In both the appeals the common grievance is that the CIT(A) erred in confirming the penalty levied u/s. 271 (1) (c) of the Act. Since under lying facts in the issues are common, we deem it fit to dispose both the appeals by this common order for the sake of convenience and brevity. 3. While disposing these appeal we have considered the facts of ITA No.5434/Del/2016. 4. The roots for the levy of penalty lie in the assessment order dated 23.12.2011 framed u/s. 153 A r.w.s 143 (3) of the Act. 5. While scrutinizing the return of income the Assessing Officer found that the assessee has shown rental income of Rs. 60,000/- and claimed deduction u/s.24(a)(b) @ 30% amounting to Rs. 18,000/- and also claimed interest on loan am....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....is at page 1 of the paper book. It is the say of the counsel that the Assessing Officer has not specified under which limb of section 271 (1) (c ) of the Act the penalty has been levied. For this proposition reliance was placed on various judicial decisions. 12. Arguing on the merits of the case the counsel stated that there are ample evidence to show that a residential house was purchased for which loan was sanctioned by ICICI bank and therefore, the claim of the assessee is genuine which requires no levy of penalty u/s. 271 (1) (c) of the Act. 13. The DR strongly supporting the orders of the lower authorities stated that the grounds regarding correct limb was never taken before CIT(A), therefore, this ground does not arise from the ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... which is apparent from paper book page 63 where a copy of letter issued by ICICI bank is placed. Therefore, the loan taken by assessee from ICICI bank cannot be said to be taken for the purpose of purchase of the said property as the said property was already purchased on 25.11.2005 and full payment of consideration was already paid as is apparent from the copy of the sale deed. One of the factors which was taken into account by Ld, CIT(A) is that assessee had not utilized borrowed funds for acquisition of property. These facts are verifiable from the copy of sale deed itself. Therefore, in our considered opinion, Ld. CIT(A) had arrived at the correct conclusion that deduction u/s 24(h) and u/s 80-C cannot be allowed to the assessee. Secti....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ong facts. Therefore, to this extent we do not find any merits in the case of the assessee that the claim was bonafide, though, not allowed by the revenue authorities and, therefore, the penalty levied u/s. 271 (1) (c ) of the Act should be deleted. 16. Coming to the plea taken for the first time before us that the penalty notice did not specify under which limb of the section the penalty proceedings have been initiated. In our considered opinion this issue was never raised before the first appellate authority and has been raised for the first time before the Tribunal. We agree with the DR that the question whether correct limb has been applied is a question of fact and not a question of law. For this proposition we draw support from the....