2019 (1) TMI 1976

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e other hand, Ld. AR requested for dismissal of the said application. 5. We have heard the counsels for both the parties on this application for seeking condonation of delay and while taking into consideration the contents of application filed by the assessee and following the principles laid down by Hon'ble Supreme Court in case of "Land Acquisition Collector Vrs. MstKitzi, AIR 1987 S.C. 1353/(1987) 167 ITR 471 (SC), we condone the delay of 7 days in filing the appeal. Resultantly, this application is allowed and appeal is admitted to be heard on merits. I.T.A. No. 1949/Mum/2016 (AY 2010-11) 6. First of all we take up revenue's appeal in I.T.A. No. 1949/Mum/2016 (AY 2010-11) on the grounds mentioned herein below:- "Whether on the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the penalty levied u/s 271(1)(c) of the Act, despite a clear finding given by the Assessing Officer that the assessee filed revised return beyond the due date for filing revised return and only due to the enquiries in the assessment proceedings." The appellant craves leave to add to, amend or withdraw the foresaid ground of appeal. 7. As per the facts o....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... that the challenge goes to the root of the matter and only supports the order of Ld. CIT(A) deleting the penalty. 11. On the other hand, Ld. DR contested the said application and submitted that the assessee being the respondent in the present case has no right to move an application under Rule 27 of I.T. (Appellate Tribunal) Rule 1963. 12. We have heard the counsels for both the parties on this application and we have also perused the material placed on record as well as judgment cited by the parties, we find that Hon'ble Bombay High Court in the case of CIT vrs. Hazarimal Nagji & Co. 1168 ITR (Vol. XLVI), wherein it was held that the powers of the Appellate Tribunal are similar to the powers of the appellate court under the Civil Procedure Code. In so far as a respondent only want to maintain the decree of the lower court which is in his favour, he is entitled to support it on fresh grounds if he can do so, and the appellate court also will have jurisdiction to permit him to do so, provided that the fresh grounds which he wants to urge do not require a further investigation in to facts which are not already on record and are not based on facts which were neither alleged nor ad....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....as 59 to 62 thereof are extracted hereunder for reference: - "59. As the provision stands, the penalty proceedings can be initiated on various ground set therein. If the order passed by the Authority categorically records a finding regarding the existence of any said grounds mentioned therein and then penalty proceedings is initiated, in the notice to be issued under Section 274, they could conveniently refer to the said order which contains the satisfaction of the authority which has passed the order. However, if the existence of the conditions could not be discerned from the said order and if it is a case of relying on deeming provision contained in Explanation-1 or in Explanation-1(B), then though penalty proceedings are in the nature of civil liability, in fact, it is penal in nature. In either event, the person who is accused of the conditions mentioned in Section 271 should be made known about the grounds on which they intend imposing penalty on him as the Section 274 makes it clear that assessee has a right to contest such proceedings and should have full opportunity to meet the case of the Department and show that the conditions stipulated in Section 271(1)(c) do not exis....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....penalty is not valid. The validity of the order of penalty must be determined with reference to the information, facts and materials in the hands of the authority imposing the penalty at the time the order was passed and further discovery of facts subsequent to the imposition of penalty cannot validate the 7 ITA No.7602/Mum/2014(AY-2005-06) TCFC Finance Ltd. order of penalty which, when passed, was not sustainable. 61. The Assessing Officer is empowered under the Act to initiate penalty proceedings once he is satisfied in the course of any proceedings that there is concealment of income or furnishing of inaccurate particulars of total income under clause (c). Concealment, furnishing inaccurate particulars of income are different. Thus the Assessing Officer while issuing notice has to come to the conclusion that whether is it a case of concealment of income or is it a case of furnishing of inaccurate particulars. The Apex Court in the case of Ashok Pai reported in 292 ITR 11 at page 19 has held that concealment of income and furnishing inaccurate particulars of income carry different connotations, The Gujarat High Court in the case of MANU ENGINEERING reported in 122 ITR 306 and the....