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04-01-2019, Simran. K. Sayyed, Section 274, 271, 271(I)(c), Tribunal Bangalore
This appeal by the assessee is directed against the order of CIT(A), Hubli dated 15.06.2017, upholding the levy of penalty of Rs.9,81,000/- u/s 271(1)(c) of the Income Tax Act, 1961 (in short ‘the Act’) for Assessment Year 2012-13.
2. Briefly stated, the facts relevant for disposal of this appeal are as under:
2.1 The assessee, engaged in real estate business, filed her return of income for Assessment Year 2012-13 on 17.09.2012 declaring total income of Rs.3,25,110/-. The return was processed u/s 143(1) of the Act. On 19.02.2013, in the course of survey u/s 133A of the Act conducted at the business premises of the assessee’s husband Shri. K. M. Sayyed at Gadag and Koppal, it was found that the assessee along with her husband was constructing a lodge building which was at completion stage. On the basis of books impounded, it was ascertained that the actual investment in construction of the lodge building was Rs.2,41,20,000/-, whereas the explained sources of investment was only Rs.1,49,81,000/-. The unexplained difference in investment in construction of the aforesaid lodge building amounting to Rs.74,86,000/- was admitted as being out of undisclosed income in the hands of the assessee and her husband @ 50% each thereof i.e., at Rs.37,43,000/- each. Proceedings u/s 147 of the Act were initiated in this regard for Assessment Year 2012-13 and notice u/s 148 of the Act was issued on 29.08.2013 in response to which the assessee filed a return of income on 13.01.2015 declaring total income of Rs.36,25,110/-. The order of assessment was accordingly completed u/s 143(3) r.w.s. 147 of the Act vide order dated 30.03.2015 wherein the assessee’s income was accepted as returned at Rs.36,25,110/- and penalty proceedings u/s 271(1)(c) of the Act were simultaneously initiated by issue of notice u/s 274 r.w.s. 271 of the Act dated 30.03.2015.
2.2 Penalty proceedings were taken up and vide order dated 30.09.2015, the Assessing Officer (‘AO ) levied penalty of Rs.9,81,000/- u/s 271(1)(c) of the Act for Assessment Year 2012 13 for concealment of particulars of income. On appeal, the CIT(A), Hubli, dismissed the assessee’s appeal ex-parte, vide the impugned order dated 05.06.2017 by not condoning the delay of 15 days in filing the appeal and also on merits; without hearing the assessee in the matter.
3.1 Aggrieved by the ex-parte order of the CIT(A), Hubli, dated 05.06.2017, upholding the levy of penalty of Rs.9,81,000/- u/s 271(1)(c) of the Act, the assessee has preferred this appeal, wherein she has raised the following grounds:
1. The order passed by the Assessing Officer is illegal, baseless and opposed to the facts of the case. The Learned Income Tax Officer has not clearly specified as to for which reason he has initiated penalty proceedings u/s 271(1)(c)of the Income Act.
2. There is not concealment of any income. There are additions to the income declared. The income offered was declared only to co-operate with the department and to buy peace. The Department has not found any concealment of any income.
3. The assessee prayed leave to add any more grounds of appeal before or at the time of hearing.
3.2 Subsequently, the assessee has also made an application on 30.08.2018 for admission of the following additional grounds of appeal:
1. The Learned Commissioner of Income Tax (Appeals) ought to have granted an opportunity before dismissing the appeal on limitation.
2. The Appellant submit that she has shifted are residence to Koppal and there was some delay in getting the order copy enabling to contact the consultant at Gadag to file an appeal and the Appellant entertained a belief that the delay would be explained at the time of hearing.
3.3 In support of the additional ground raised (Supra) the learned AR of the assessee submitted that the said ground is a pure legal ground that goes to the root of the matter and can be decided on the basis of material already on the records. According to the assessee the omission to raise specific grounds to this effect was neither intentional nor deliberate and prayed that the additional ground raised be admitted for adjudication in the interest of equity and justice. In this regard reliance was placed on the decision of the Hon’ble Apex Court in the case of