2023 (8) TMI 876

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.... 2008-09. Initially this appeal was adjudicated vide order dated 20.09.2022 in ex parte proceedings as neither the assessee nor his representative appeared despite service of notice of hearing of appeal. However, the order dated 20.09.2022 was re-called in assessee's Miscellaneous Application (MA) No.17/SRT/2023, vide order dated 26.06.2023. Thus, this appeal was taken up for hearing afresh. We find that at the time of hearing MA No. 17/Srt/2023, the dated of hearing afresh was fixed on 28.07.2023, despite fixing the appeal for hearing in the presence of representative of assessee, neither the assessee nor his Authorized Representative appeared nor filed any application for adjournment on the part of assessee. However, the assessee filed de....

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.... short) while filing original return of income. The assessee has referred the provision of Section 148 and submitted that on going through the proviso of Section 148, it became clear that before making assessment under section 147, the Assessing Officer has issued notice in requiring the assessee to file his return of income and any such return filed under section 147, replace his original return of income, for such purpose, such returned filed is treated as returned filed under section 139. The alleged concealment of income as shown in the return of income under section 148, which is nothing but return under section 139 and the question of applicability of provision of penalty under section 271(1)(c) does not arise. In support of assessee'....

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....eration of Rs. 12,19,824/- for the purpose of computation of long term capital gain (LTCG). On the LTCG, the assessee paid due tax. Thereafter, the Assessing Officer initiated penalty proceedings for concealment of particulars of income and levied penalty vide order dated 29.04.2016. Before levying penalty, the Assessing Officer recorded that show cause notice under section 274 r.w.s., 271(1)(c) was issued to assessee on 18.04.2016 to file reply by 22.04.2016. The Assessing Officer further recorded that in response to show cause notice, assessee made prayer for adjournment. The Assessing Officer instead of adjourning case of assessee recorded that he has considered the submission made by assessee and not accepted the same. The Assessing Off....

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....held that during assessment proceedings, penalty was already initiate so there is no need to record mandatory satisfaction. Further aggrieved, the assessee has filed present appeal before the Tribunal. We have already recorded the submission of both the parties in above para (supra). 7. We find that assessee in his written submissions has mainly relied on the decision of Hon'ble jurisdictional High Court in the case of Kirit Dahyabhai Patel (supra) wherein it was held that return of income filed in response to notice issued under section 153A is to be considered as returned filed under section 139 of the Act, for the purpose of penalty imposed under section 271(1)(c) to be levied on the income assessed over and above the returned incom....