TaxTMI 
TaxTMI 
2018 (10) TMI 1783
X X X X Extracts X X X X
X X X X Extracts X X X X
....reasonable opportunity having been provided by the Assessing Officer at the time of levying penalty. Only one notice dated 10-11-2009 is said to have been defaulted by the assessee, although it actually was not so, still the L'd Commissioner Of Income Tax ( Appeals) has erred in disallowing application U/r 46A made by the assessee on this very flimsy ground and sustaining the hurried levy of penalty without giving a reasonable opportunity to the assessee. 3. That the powers and duty of the L'd Commissioner Of Income Tax (Appeals) are coextensive to the Assessing Officer and hence even if he felt that the penalty was unilaterally levied without opportunity to be correct, he failed in his duty to see that in arriving at the correct facts the appreciation of ample material presented before him in first appeal was of utmost importance. To this extent the L'd Commissioner Of Income Tax (Appeals) has erred in rejecting application U/r 46A and not considering the facts borne by cogent evidence before him. 4. That the L'd Assessing Officer has failed to appreciate that the agreement was executed on 01-12-2000 and after seven long years the Assessing Office....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1 (for short 'the Act') at the income of Rs. 15,53,225/- after making addition of Rs. 15,00,000/- on account of unexplained cash credit deposited in the bank u/s 68 of the Act, penalty proceedings were initiated u/s 271(1)(c) of the Act. On failure of the assessee to appear during the penalty proceedings, AO proceeded to conclude that the assessee has intentionally furnished inaccurate particulars of income regarding unexplained cash credit deposited of Rs. 15,00,000/- in the bank and addition made thereon has been confirmed upto the Tribunal level, and levied the penalty of Rs. 7,72,000/-. 3. Assessee carried the matter before the ld. CIT (A) by way of filing an appeal who has confirmed the penalty levied by the AO by dismissing the appeal. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal. 4. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. 5. Undisputedly, penalty of Rs. 7,72,000/- has been levied u/s 271(1)(c) of the Act primarily on the ground o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ready perusal :- "NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF THE INCOME TAX ACT, 1961 Dated : 14.12.2007 To Sh. Swami Saran Garg, 66, Kambalwala Bagh, Muzaffarnagar. Whereas in the course of proceedings before me for the assessment year 2001-02 it appears to me that you:- Have without reasonable cause failed to furnish me return of income which you were required to furnish by a notice given under Section 22(1)/22(2)/34 of the Indian Income-tax Act, 1922 or which you were required to furnish under section 139(1) or by a notice given under Section 139(2)/148 of the Income-tax Act, 1961, No............dated................. have without reasonable cause failed to furnish it within the time allowed and the manner required by the said Section 139 (1) or by such notice. have without reasonable cause failed to comply with a notice under section 22(4)(23(2) of the Indian Income-tax Act, 1922 or under Section 142(1)/143(2) Income-tax Act, 1961, No............dated................. Have concealed the particulars of your income or.......... furnished inaccurate particulars of such income. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fiction constitute concealment because of deeming provision. g) Even if these conditions do not exist in the assessment order passed, at least, a direction to initiate proceedings under Section 271(l)(c) is a sine qua non for the Assessment Officer to initiate the proceedings because of the deeming provision contained in Section 1(B). h) The said deeming provisions are not applicable to the orders passed by the Commissioner of Appeals and the Commissioner. i) The imposition of penalty is not automatic. j) Imposition of penalty even if the tax liability is admitted is not automatic. k) Even if the assessee has not challenged the order of assessment levying tax and interest and has paid tax and interest that by itself would not be sufficient for the authorities either to initiate penalty proceedings or impose penalty, unless it is discernible from the assessment order that, it is on account of such unearthing or enquiry concluded by authorities it has resulted in payment of such tax or such tax liability came to be admitted and if not it would have escaped from tax net and as opined by the assessing officer in the assessment order. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of the considered view that when the assessee has not been specifically made aware of the charges leveled against him as to whether there is a concealment of income or furnishing of inaccurate particulars of income on his part, the penalty u/s 271(1)(c) of the Act is not sustainable. The case law relied upon by the ld. DR are not applicable to the facts and circumstances of this case in the face of the decisions rendered by the Hon'ble High Court in Manjunatha Cotton and Ginning Factory & Ors. (supra), affirmed by the Hon'ble Apex Court. 13. On merits even, when we examine the copy of return along with computation of income, receipt and capital account and balance sheet at page nos.15 to 18 of the paper book, it contains the entire detail as to the amount held to be unexplained cash deposit in the bank by the assessee and in these circumstances, it does not amount to concealing the particulars of income or furnishing of inaccurate particulars of income during assessment proceedings. Moreover, entry for the advance received by the assessee in his bank passbook cannot be termed as books of account so as to attract the provisions contained u/s 68 of the Act. 14. Hon'ble Suprem....