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2020 (8) TMI 811
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....on that basis of initiation of penalty and ultimate levy vide order dated 30.03.20 17 is oil same limb namely, furnishing of inaccurate particulars. (4) CIT(A) further erred in this connection in holding that Explanation 1 to Section 271(1)(c) is clearly attracted. (5) CIT(A) further erred in this connection in holding that principles laid down in CIT v. NAYAN BUILDERS AND DEVELOPERS 368 ITR 722 (BOM) are not applicable to Appellant's case and still further erred in relying on CIT v. SHREE COPAL HOUSING & PLANTATION CORPORATION DATED 06.02.18 (BOM). (6) CIT(A) further erred in this connection in holding that no appeal is filed before Honourable Bombay High Court against Tribunal's order for Assessment Year 2006-07. (7) CIT(A) further erred in this connection in holding that:- a) it is simply not a case of change of head of income; b) Tribunal's order for Assessment Year 2006-07 was accepted by Appellant; c) on merits [quantum], principle of consistency is not applicable to Appellant; d) claim of Appellant is not bonafide; e) from the facts found by AO and CIT(A) in quantum appeal, share tra....
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....tails of sale and purchase of shares in the relevant per-forma vide notice u/s 142(1) dated 02.05.2014. It was noticed that the assessee had carried out share trading activity with a short interval and with huge quantity. In some of the cases, shares were not event held for 1 or 2 months. Thus, the assessee has carried out share trading activity with an intention to earn quick profit which is nothing but trading in shares liable to be taxed as business income. Therefore, the capital gain showed was treated as business income and the total income of the assessee was assessed in sum of Rs. 5,26,75,510/-. The CIT(A) confirmed the addition, thereafter, the penalty proceeding was initiated after issuance of notice and the penalty in sum of Rs. 95,05,536/- was levied. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who confirmed the penalty, therefore, the assessee has filed the present appeal before us. 4. All the issues are in connection with the confirmation to levy the penalty by the AO. The Ld. Representative of the assessee has argued that the notice issued to levy the penalty was not tick off to any limb i.e. furnishing the inaccurate particulars of income or ....
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....y can be levied on the existence of any of the two situations, namely, for concealing the particulars of income or for furnishing inaccurate particulars of income. Therefore, it is obvious from the phraseology of Sec. 271(1)(c) of the Act that the imposition of penalty is invited only when the conditions prescribed u/s 271(1)(c) of the Act exist. It is also a well accepted proposition that "concealment of the particulars of income‟ and "furnishing of inaccurate particulars of income‟ referred to in Sec. 271(1)(c) of the Act denote different connotations. In fact, this distinction has been appreciated even at the level of Hon'ble Supreme Court not only in the case of Dilip N. Shroff (supra) but also in the case of T. Ashok Pai, 292 ITR 11 (SC). Therefore, if the two expressions, namely "concealment of the particulars of income‟ and "furnishing of inaccurate particulars of income‟ have different connotations, it is imperative for the assessee to be made aware as to which of the two is being put against him for the purpose of levy of penalty u/s 271(1)(c) of the Act, so that the assessee can defend accordingly. It is in this background that one has to appre....
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....been dismissed by the Hon'ble Supreme Court vide order dated 5.8.2016, a copy of which is also placed on record. 10. In fact, at the time of hearing, the ld. CIT-DR has not disputed the factual matrix, but sought to point out that there is due application of mind by the Assessing Officer which can be demonstrated from the discussion in the assessment order, wherein after discussing the reasons for the disallowance, he has recorded a satisfaction that penalty proceedings are initiated u/s 271(1)(c) of the Act for furnishing of inaccurate particulars of income. In our considered opinion, the attempt of the ld. CIT-DR to demonstrate application of mind by the Assessing Officer is no defence inasmuch as the Hon'ble Supreme Court has approved the factum of non-striking off of the irrelevant clause in the notice as reflective of non-application of mind by the Assessing Officer. Since the factual matrix in the present case conforms to the proposition laid down by the Hon'ble Supreme Court, we proceed to reject the arguments advanced by the ld. CIT-DR based on the observations of the Assessing Officer in the assessment order. Further, it is also noticeable that such pr....
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....initiated and also issued an incorrect notice. Both the acts of the AO, in our view, clearly show that the AO did not apply his mind when he issued notice to the assessee and he was not sure as to what purpose the notice was issued. The Hon'ble Bombay High Court has discussed about non-application of mind in the case of Kaushalya (supra) and observed as under:- "...The notice clearly demonstrated non-application of mind on the part of the Inspecting Assistant Commissioner. The vagueness and ambiguity in the notice had also prejudiced the right of reasonable opportunity of the assessee since he did not know what exact charge he had to face. In this back ground, quashing of the penalty proceedings for the assessment year 1967-68 seems to be fully justified." In the instant case also, we are of the view that the AO has issued a notice, that too incorrect one, in a routine manner. Further the notice did not specify the charge for which the penalty notice was issued. Hence, in our view, the AO has failed to apply his mind at the time of issuing penalty notice to the assessee." 12. The aforesaid discussion clearly brings out as to the reasons why the parity of ....
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....e of Shri Samson Perinchery (supra). Thus, on this count itself the penalty imposed u/s 271(1)(c) of the Act is liable to be deleted. We hold so. Since the penalty has been deleted on the preliminary point, the other arguments raised by the appellant are not being dealt with." 5. Further, we find that the assessee has offered his income from the sale and purchase of the shares transaction under the head of long/short term capital gain. However, the AO treated the same as business income on seeing the voluminous transactions of the shares. No doubt the said finding was confirmed by CIT(A) but in fact there is no concealment of income or furnishing the inaccurate particulars of income. The assessee showed his income from long/short term capital gain from his share purchase transaction. However, the same was not accepted and the income from the share transaction was treated as business income. These facts nowhere attract the penalty in view of the law settled by Hon'ble Supreme Court in the case of Reliance Petroproduct Vs. CIT (P) Ltd. 322 ITR 158 SC. Taking into account all the facts and circumstances, we are of the view that the penalty is not liable to be sustainable in the eye....
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....dated 14/05/2020 held as under: - 7. However, before we part with the matter, we must deal with one procedural issue as well. While hearing of these appeals was concluded on 7th January 2020, this order thereon is being pronounced today on 14th day of May, 2020, much after the expiry of 90 days from the date of conclusion of hearing. We are also alive to the fact that rule 34(5) of the Income Tax Appellate Tribunal Rules 1963, which deals with pronouncement of orders, provides as follows: (5)The pronouncement may be in any of the following manners: - (a) The Bench may pronounce the order immediately upon the conclusion of the hearing. (b) In case where the order is not pronounced immediately on the conclusion of the hearing, the Bench shall give a date for pronouncement. (c) In a case where no date of pronouncement is given by the Bench, every endeavour shall be made by the Bench to pronounce the order within 60 days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of exceptional and extraordinary circumstances of the case, the Bench shall fix a future day for pronouncem....
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.... was not much of a relaxation in subsequent lockdowns also. In any case, there was unprecedented disruption of judicial wok all over the country. As a matter of fact, it has been such an unprecedented situation, causing disruption in the functioning of judicial machinery, that Hon'ble Supreme Court of India, in an unprecedented order in the history of India and vide order dated 6.5.2020 read with order dated 23.3.2020, extended the limitation to exclude not only this lockdown period but also a few more days prior to, and after, the lockdown by observing that "In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown". Hon'ble Bombay High Court, in an order dated 15th April 2020, has, besides extending the validity of all interim orders, has also observed that, "It is also clarified that while calculating time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and t....