AI Drafter 
TaxTMI 
TaxTMI 
2023 (10) TMI 707
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....o. 1738/AHD/2016 for Block Period 01.04.1995 to 19.12.2001. 2 The following substantial questions of law are raised for consideration of this Court: "(i) Whether on the facts and in the circumstances of the case and in law, the Ld. Tribunal was justified in deleting the penalty levied u/s. 271 D of the Act totaling to Rs.2,79,47,692/- relying upon the decision in the case of CIT vs. Jai Laxmi Rice Mills (2015) taxmann.com 75(SC) and without appreciating that the facts of the instant case are not identical? (ii) Whether on the facts and in the circumstances of the case and in law, the Ld.Tribunal was justified in not upholding the findings of the CIT(A) where a clear finding was given with respect to levy of penalty u/s.....
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.... Act, if any. 8. This order is passed after getting the approval of the Addl. CIT, CR, Baroda." 4 Reading of the Assessment Order, therefore, would indicate that there was no mention in the said order regarding initiation of penalty proceedings under Section 271D of the Act. 5 Mr.Nikunt Raval, learned Senior Standing Counsel appearing for the revenue, would submit that once the Tribunal vide order dated 29.02.2012, in context of a reference made by the Assessing Officer on 14.05.2004 for initiation of penalty proceedings, had restored the file to the CIT(A), the observations of the Tribunal about absence of reference to penalty proceedings would be unsustainable. Perusal of the findings of the Tribunal read as under: ....
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.... assessee on his second additional ground of appeal submits that the Assessing Officer while passing the assessment order on 31/12/2003 has not recorded any satisfaction about initiation of penalty under Section 271D of the Act. The ld. AR of the assessee carried us through the contents of assessment order and would submit that there is no whisper about the initiation of penalty under Section 271D or any whisper for making any reference for initiation of penalty under Section 271D of the Act. The ld. AR for the assessee submits that the Hon'ble Apex Court in the case of CIT Vs Jai Laxmi Rice Mills (2015) 64 taxmann.com 75 (SC) held that wherein no satisfaction was recorded for initiating penalty proceedings under Section 271E, the impugned ....
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....ng satisfaction about the initiation of penalty under section 271D is merely a curable defect. The assessee has nowhere raised such objection either at the time of penalty proceedings of at first appellate stage. 11. We have considered the submissions of both the parties and have gone through the assessment order dated 31/12/2003. On careful perusal of the assessment order, we find that there is no whisper or reference in the assessment order about initiation of penalty under Section 271D. We further find that there is no whisper about making a reference to the Joint Commissioner or Additional commissioner for levying such penalty. We find that the Hon'ble Apex Court in CIT Vs Jai Laxmi Rice Mills (supra), while considering the sim....
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....nforming the Department that the assessee is engaged in large scale purchase and sale of wheat, but it is not filing income tax. Exparte proceedings were initiated, which resulted in the aforesaid order, as per which net taxable income of the assesse was assessed at Rs.18,34,584/-. While framing the assessment, the Assessing Officer also observed that the assessee had contravened the provisions of Section 269SS of the Act and because of this the Assessing Officer was satisfied that penalty proceedings under Section 271E of the Act were to be initiated. 2. The assessee carried out this order in appeal. The Comissioner of Income Tax (Appeals) allowed the appeal and set aside the assessment order with a direction to frame the assessme....