2022 (10) TMI 30

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....2-13. 2. Brief facts, relevant for adjudication of the instant appeal, are that in the instant case, the Assessee declared the loss of Rs.12,83,96,466/-by filing its return of income on dated 28.09.2012 for the assessment year under consideration. The Assessing Officer by noticing that the Assessee had claimed Real Estate Project Expenses of Rs.78,40,58,041/- as compared to the previous years' claim of Rs.23,56,50,000/-, show caused the Assessee. In reply, it was contended by the Assessee that it has followed the percentage completion method in earlier years wherein the expenditure for ascertaining the revenue was based on expected estimate and the project was completed in the current year. The Assessing Officer however found that the proj....

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....ssessee that the loss be disallowed subject to that no penalty be levied u/s. 271(1)(c) of the Act and that the genuineness of the expenditure is not disputed. Relying upon various decisions, it was also submitted that there was no conscious and deliberate concealment on the part of the Assessee. 2.4. Being not satisfied with the said explanation of the Assessee, the Assessing Officer vide order dated 23.09.2015 levied the penalty of Rs.4,36,41,961/- for concealing the particulars of its income on the amounts of returned income of Rs. (-)12,83,96,466/- and Rs.3,02,436/-. 3. Being aggrieved with the levy of penalty, the Assesseepreferred first appeal before the ld. Commissioner, who vide impugned order, dismissed the appeal of the Assessee....

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....sing the plea, which is legal in nature, challenged the Imposition of penalty mainly on the basis of notices itself, therefore we deem it appropriate to decide the legal issue involved in the instant case first,before dwelling into the merits of the case. 7.2 The Hon'ble Apex Court in case of M/s. SSA's Emerald Meadows, (2016) 73 taxmann.com 248(SC) dismissed the Special Leave Petition filed by the Revenue against the judgment rendered by Hon'ble High Court of Karnataka whereby identical issue was decided in favour of the Assessee. Operative part of the judgment in case of M/s. SSA's Emerald Meadows (supra) decided by Hon'ble High Court of Karnataka is reproduced below:- "2. This appeal has been filed raising the foll....

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....or concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the Assessee, has relied upon the decision of the Division Bench of this Court rendered In the case of COMMISSIONER or INCOME TAX -VSMANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court, the appeal is accordingly dismissed." 7.3 The Hon'ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory, 359 ITR 565 (Kar) observed where the Assessing Officer proposed to invoke first limb bein....

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....hus, notice under Section 271(1)(c) r.w.s. 274 of the Act itself is bad in law. We, therefore, set-aside the order of the CIT(A) and direct the Assessing Officer to cancel the penalty so levied." 7.5 The penalty provisions of section 271(1)(c) of the Act are attracted, where the Assessee has concealed the particulars of income or furnished inaccurate particulars of such income. It is also a well-accepted proposition that the aforesaid two limbs of section 271(1)(c) of the Act carry different meanings. Therefore, it is imperative for the Assessing Officer to specify the relevant limb so as to make the Assessee aware, as to what is the charge made against him so that he can respond accordingly. 7.6 In the background of the aforesaid legal p....