HPCL Mittal Energy Ltd vs. ACIT (ITAT Amritsar) (Third
Member)
S. 271(1)(c)/ 292B: The AO cannot
initiate penalty on the charge of 'concealment of particulars of income', but
ultimately find the assessee guilty in the penalty order of 'furnishing
inaccurate particulars of income' (and vice versa). In the same manner, he
cannot be uncertain in the penalty order as to concealment or furnishing of
inaccurate particulars of income by using slash between the two expressions.
Such error is not procedural but goes to the root of the matter and is not
saved by s. 292B. The error renders the penalty order unsustainable in law
When the AO is satisfied that it is
a clear-cut case of concealment of particulars of income, he must specify it so
in the notice at the time of initiation of penalty proceedings and also in the
penalty order. The AO cannot initiate penalty on the charge of `concealment of
particulars of income’, but ultimately find the assessee guilty in the penalty
order of `furnishing inaccurate particulars of income’. In the same manner, he
cannot be uncertain in the penalty order as to concealment or furnishing of
inaccurate particulars of income by using slash between the two expressions.
When the AO is satisfied that it is a clear-cut case of `furnishing of
inaccurate particulars of income’, he must again specify it so in the notice at
the time of initiation of penalty proceedings and also in the penalty order.
After initiating penalty on the charge of `furnishing of inaccurate particulars
of income’, he cannot impose penalty by finding the assessee guilty of
`concealment of particulars of income’
Pramod Kumar Lodha vs. ITO (ITAT Jaipur)
S. 10(38) Bogus long-term gains from
penny stocks: The transaction cannot be treated as bogus until and unless a
finding is given that the shares were acquired by the assessee from the person
other than the broker claimed by the assessee. The enquiry conducted by the
Investigation Indore is not a conclusive finding of fact in view of the fact
that the shares were duly materialized & held in the d-mat account. Merely
supplying of statement to the assessee at the fag end of the assessment
proceedings is not sufficient to meet the requirement of giving an opportunity
to cross examine. The AO cannot proceed on suspicion without any material
evidence to controvert or disprove the evidence produced by the assessee
The decision of the AO holding the
transaction as bogus and denying the claim of long term capital gain under
section 10(38) of the Act is based on suspicion without any material evidence
to controvert or disprove the evidence produced by the assessee. The enquiry
conducted by the ITO Investigation Indore is not a conclusive finding of fact
that the transaction of purchase of shares by the assessee is bogus
particularly in view of admitted fact that these shares were held by the
assessee and were duly materialized in the d-mat account. Therefore, until and
unless a finding is given that the shares were acquired by the assessee from
the person other than the broker claimed by the assessee, the mere suspicion
how so ever strong may be, cannot be a basis of addition or disallowance of
claim
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