VIKRAM ANJANA,PRATAPGARH vs. ACIT, CIRCLE, CHITTORGARH

This is an appeal by the assessee against the order dated 21.12.2018 of the Ld. Commissioner of Income Tax (Appeals)-1, Udaipur.

33,70,264/-which was assessed at an income of Rs. 43,53,248/- u/s 143(3) of the Act on 12.12.2008. 4. Being aggrieved, the assessee carried the matter to the Ld. CIT(A)

who allowed part relief and upheld the addition of Rs. 1,10,895/-.

who sustained the penalty.

were initiated by the Assessing Officer without specifying any change i.e. as to whether there was concealment of income or inaccurate particulars of income were furnished. He drew my attention towards the assessment order

passed by the Assessing Officer wherein it has been mentioned that penalty

proceedings u/s 271 (1) (c) of the Act were initiated but nowhere it was mentioned as to whether the penalty proceedings were initiated for concealment of income or furnishing of inaccurate particulars of income. It was also stated that even in the penalty order the Assessing Officer had not mentioned as to whether the assessee furnished inaccurate particulars of income or concealed his income. He drew my attention towards para 7.2 of the penalty order wherein the Assessing Officer mentioned that the assessee

had concealed his true income and also had furnished inaccurate particulars

of his income to the tune of Rs. 1,10,895/- and in para 8, he mentioned that assessee willfully concealed his income to the tune of Rs. 1,10,895/-.

Accordingly, it was submitted that the Assessing Officer was not sure as to whether the assessee concealed his income or furnished inaccurate

particulars of income. In other words, the charge was not specific, therefore,

penalty was not leviable. My attention was also drawn towards page No. 18

of the assessee's paper book, which is copy of the penalty notice issued to the assessee wherein it has been mentioned that the penalty u/s 271 (1)(c) of 4549/Del./2011 for the assessment year 2001-02, order dated 03.10.2019,

copy of the said order was furnished which is placed at pages 31 to 43 of the assessee's paper book.

of the authorities below.

mentioned that the assessee had concealed the income or furnished the inaccurate particulars of income. The Assessing Officer while imposing

penalty u/s 271 (1) (c) of the Act has not mentioned specifically as to whether the assessee has concealed the income or furnished inaccurate

particulars of income. On an identical issue, the ITAT, Delhi Bench 'G" New

Delhi in the case of Swami Saran Garg Vs. ITO (supra) held as under:-

"

j) Imposition of penalty even if the tax liability is admitted is not automatic. k) Even if the assessee has not challenged the order of assessment levying tax and interest and has paid tax and interest that by itself would not be sufficient for the authorities either to initiate penalty proceedings or impose penalty, unless it is discernible from the assessment order that, it is on account of such unearthing or enquiry concluded by authorities it has resulted in payment of such tax or such tax liability came to be admitted and if not it would have escaped from tax net and as opined by the assessing officer in the assessment order. l) Only when no explanation is offered or the explanation offered is found to be false or when the assessee fails to prove that the explanation offered is not bonafide, an order imposing penalty could be passed. m) If the explanation offered, even though not substantiated by the assessee, but is found to bebonafide and all facts relating to the same and material to the computation of his total income have been disclosed by him, no penalty could be imposed. n) The direction referred to in Explanation IB to Section 271 of the Act should be clear and without any ambiguity. o) If the Assessing Officer has not recorded any satisfaction or has not issued any direction to initiate penalty proceedings, in appeal, if the appellate authority records satisfaction, then the penalty proceedings have to be initiated by the appellate authority and not the Assessing Authority. p) Notice under Section 274 of the Act should specifically state the grounds mentioned in Section 271(1)(c), i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income

q) Sending printed form where all the ground mentioned in Section 271 are mentioned would not satisfy requirement of law. r) The assessee should know the grounds which he has to meet specifically. Otherwise, principles of natural justice is offended. On the basis of such proceedings, no penalty could be imposed to the assessee. s) Taking up of penalty proceedings on one limb and finding the assessee guilty of another limb is bad in law. t) The penalty proceedings are distinct from the assessment proceedings. The proceedings for imposition of penalty though emanate from proceedings of assessment, it is independent and separate aspect of the proceedings. u) The findings recorded in the assessment proceedings in so far as "concealment of income" and "furnishing of incorrect particulars" would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the said proceedings on merits. However, the validity of the assessment or reassessment in pursuance of which penalty is levied, cannot be the subject matter of penalty proceedings. The assessment or reassessment cannot be declared as invalid in the penalty proceedings."

आदेशक"""त"ल"पअ"े"षत/ Copy of the order forwarded to : 1. अपीलाथ"/ The Appellant

आदेशानुसार/ By order सहायकपंजीकार/