TaxTMI 
TaxTMI 
TaxTMI 
2016 (6) TMI 1383
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.... case, the assessee has filed this appeal after delay of 58 days, for which necessary affidavit has been filed by the assessee and claimed that the assessee had directed concerned AR to file appeal within time but the AR had assigned to this work to another AR, who got mixed up file with other files and which was not traceable. There is no lack on the part of the assessee in filing the appeal within the prescribed time and the delay was beyond the control. Therefore, he prayed to condone the delay. 2.1 At the outset, the ld DR has heavily opposed the condonation of delay. After considering both sides, in the interest of principles of natural justice, we condone the delay. 3. In this case, the assessee filed return on 31/07/2007 declaring total income of Rs. 95,880/-. Apart from this, he had also shown agricultural income of to the tune of Rs. 35,98,640/-. The case was scrutinized U/s 143(3) of the Act. The ld Assessing Officer made addition of Rs. 35,98,640/- on account of net agricultural income not verifiable. Accordingly, penalty proceedings U/s 271(1)(c) of the Act was initiated separately for furnishing inaccurate particulars of income but in concluding para, he has initiate....
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....0/- by disclosing bogus/non genuine agricultural income. This shows that the assessee had a clear cut mens rea for concealment of income. The mens rea of the assessee has been proved beyond doubt and thereby committed the default as prescribed U/s 271(1)(c) of the IT Act, 1961 and is therefore liable for penalty. He finally imposed penalty U/s 271(1)(c) of the Act on concealment of income at Rs. 11,87,476/-, which is 100% of tax sought to be evaded on concealed income. 4. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had confirmed the addition by observing as under:- "I have carefully perused the cases relied on by the AR and find that the law expounded by the Hon'ble Supreme Court does not give relief to the assessee in view of the facts of his case. In his case when the investment in property was discovered and enquiries initiated the assessee filed his return showing alleged agricultural income to explain this investment. Thereafter, in-spite of repeated opportunity he was not able to furnish any document or evidence in support of this agricultural income. The Ikrarnama between Rais Khan and the assessee was he....
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....er produced. By merely filing of the affidavits in the case of his witnesses he did not sufficiently discharge his burden of proof particularly when no books of accounts or records regarding these transactions were produced. Therefore, in view of the above facts and the law applicable to these facts the penalty1 of Rs. 11,87,476/- imposed u/s 271(1)(c) for concealment of income of Rs. 35,98,640/- is confirmed." 5. Now the assessee is in appeal before us. The ld AR of the assessee has submitted that the penalty imposed by the ld Assessing Officer is out of jurisdiction as there is no precise charge had been given in the assessment order as well as in the penalty notice issued U/s 274 read with Section 271 of the Act. He further argued that in one place, the ld Assessing Officer initiated penalty proceedings for furnishing of inaccurate particulars imposed penalty on other limb i.e. concealment of income. Therefore, the assessee could not get the opportunity of being heard and it is against the principles of natural justice. In assessment order, the ld Assessing Officer in last paragraph, has initiated penalty proceedings for concealment of income/furnishing of inaccurate particula....
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....uyer/timber merchants. The ld Assessing Officer did not make any inquiry on evidences furnished during the course of assessment proceedings. The agreement made with the purchaser to prove the bonafide of the fact, which was entered between the assessee and the purchaser in presence of two independent witnesses. The ld CIT(A) also confirmed the penalty on the basis of finding given in quantum proceedings but as per law, the penalty proceedings should be decided separately after considering the evidences furnished by the assessee. The various observations made by the lower authorities i.e. ancestral land & TCS not collected which were irrelevant for the confirming of penalty imposed U/s 271(1)(c) of the Act. The assessee had filed explanation before the lower authorities, which was not found false. He further relied on the decision of Hon'ble Supreme Court in the case of CIT Vs. Reliance Petroproducts Pvt. Ltd. 322 ITR 158. The ld Assessing Officer should have issued notice U/s 131 of the Act to the purchasers to verify the correctness of the transaction but he did not exercise his power in the interest of justice. The assessee had discharged his onus casted upon him and had prov....