SH. NAVNEET JHANB,NEW DELHI vs. ACIT, FARIDABAD

We, therefore, after hearing the rival submission and going through the order of the tax authorities as well as of the assessing officer and after noticing the penalty in all these years has also been levied on the same basis as has been levied in the assessment year 2001-02. We set aside the respective order of the CIT(A) in each of the assessment year as the issue involved in our view is duly covered in favour of the assessee by the order of this Tribunal in for the assessment year in which this tribunal vide order dated 11.7.2016 held as under :- “2. I have heard the rival submissions and carefully considered the same along with the order of the tax authorities below. I noted that in this case the AO levied the penalty on the assessee @200% of the tax sought to be evaded amounting to Rs, 4,89,880/- by observing as under: - "The assessee has kept changing the explanation, rather he kept on submitting wrong facts/misleading facts both before the AO and the CIT(A), therefore, it is a fit case for imposition of penalty @ 200%. In view of the above I find it reasonable to impose a penalty of Rs. 4,89,880/- being 200% of the tax sought to be evaded as calculated below :- i) Tax as per assessed income : Rs. 3,50,269/- ii) Tax as per returned income : Rs. 1,05,329/- iii) Tax sought to be evaded : Rs. 2,44,940/- iv) Minimum penalty leviable @100%: Rs. 2,44,940/- v) Maximum penalty leviable @ 200%: Rs. 4,89,880/- " 3. When the matter went before the Id. CIT(A), the Id. CIT(A) reduced the penalty to 100% of the tax sought to be evaded amounting to Rs, 2,44,940/-.

Provision of section 271(l)(c) empowers the AO if in the course of the proceedings under the Income Tax Act the AO is satisfied that any person has concealed the particulars of his income by furnishing inaccurate particulars of such income. Thus there are two different charges in respect of which penalty has to be imposed. The charge of concealing the particulars of income is different from furnishing of inaccurate particulars of the income. Explanation I is applicable in case of concealment of particulars of income. In the case of concealment of particulars of income the onus is on the assessee. In view of applicability of Explanation I to prove that the assesee has not concealed the particulars of income while in the case of furnishing the inaccurate particulars of income the onus lies on the revenue to prove that the assesee has furnished inaccurate particulars of income. Thus there must be specific charge in respect of which the penalty u/s 271(1) (c) can be imposed in the case of the assessee. It is apparent from the penalty order the AO is not aware of for which charge .he has imposed the penalty whether it is for furnishing inaccurate particulars or for concealing the particulars of income. Until and unless there is a specific charge being levied on the assesee. I am of the view no penalty u/s 271(l)(c) can be imposed on the assessee. My aforesaid view is tilt, supported by the decision of Gujarat High Court in the case of New Sorathia Engg. Co. vs. CIT 282 ITR 642 (Gujarat), Hon'ble Karnataka High Court has also taken the similar view in the case of CIT vs, Manjunatha Cotton & Ginning Factory 359 ITR 565. Since it is not discernible from the order passed by the AO for specific charge the penalty has been imposed u/s 271(i)(c), I therefore delete the penalty imposed u/s 271(l)(c) of the Act.

4. Respectfully following the said decision of the Tribunal, we set aside the order of the CIT(A) and delete the penalty levied u/s 271(1)(c) in each of the assessment years.

In the result all the appeals filed by the assessee are allowed. (Order Pronounced in the Open Court during the course of hearing.)