IN INCOME TAX APPELLATE TRIBUNAL PUNE BENCH , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM ITA No.1200/PUN/2017 Assessment year 2013-14 Prakash Harishchandra Kanhekar, 572, Shaniwar Peth, Uttekar Heights, Opp. Kesariwada, Appellant Pune 411 030. PAN ADIPK5624R. v/s Dy. Commissioner of Income Tax, Circle 11, Pune. Respondent Assessee by Shri Hari Krishan. Revenue by Shri Shashank Deogadkar. Date of Hearing 05.08.2019 Date of Pronouncement: 06.09.2019 ORDER PER ANIL CHATURVEDI, AM 1. This appeal filed by assessee is emanating out of order of Commissioner of Income Tax (A) Pune -1 dated 27.02.2017 for assessment year 2013-14. 2. relevant facts as culled out from material on record are as under Assessee is individual engaged in profession as Architect. Assessee electronically filed his return of income for A.Y. 2013-14 on 18.10.2013 declaring total income at Rs.41,03,020/-. case was selected for scrutiny and thereafter assessment was framed u/s 2 143(3) of Act vide order dt.30.03.206 and total income was determined at Rs.97,65,490/- inter-alia by making certain additions / disallowances aggregating to Rs.49,03,703/-. On aforesaid additions/disallowances, AO vide order dt. 30.03.2016 levied penalty of Rs.15,00,000/- u/s 271(1)(c) of Act. Aggrieved by order of AO, assessee carried matter before Ld.CIT(A), who vide order dt.27.02.2017 (in appeal No.CIT(A), Pune-1/10756/2016-17) dismissed appeal of assessee. Aggrieved by order of Ld.CIT(A), assessee is now in appeal before us and has raised following effective ground : On facts and in circumstances of case and in law Ld. CIT(A) was not justified in dismissing appeal of assessee and sustaining penalty levied u/s. 271(1)(c) by A.O. holding that proceedings can be initiated on both counts that is concealment and also furnishing of inaccurate particulars of income. finding of Ld. CIT(A) is contrary various decisions of Tribunals, High Courts including jurisdictional Bombay High Court. order of Ld. CIT(A) be set aside cancelling penalty levied u/s. 271(1)(c) without any specific charge. 3. case file reveals that there is delay of 8 days in filing appeal. As delay in filing appeal is of very few days, we are of view that delay in filing appeal can be condoned. In view of these facts, we condone delay and admit appeal for hearing. 4. On merits of levy of penalty, Ld.A.R. submitted that while passing assessment order and while recording satisfaction, AO was not clear as to whether assessee had furnished inaccurate particulars of income or concealment of income, more so he has recorded satisfaction for concealment of income as well as for furnishing of inaccurate particulars of income and in support of his contention, he pointed to Page No.3 of assessment order. Thereafter, he submitted that in penalty order also, AO has not 3 specified whether penalty is for concealment of income or for furnishing of inaccurate particulars of income and had levied penalty on both limbs. He therefore, relying on decision of Hon ble Bombay High Court in case of CIT Vs. Samson Perinchery reported in (2017) 392 ITR 4 (Bom) submitted that in absence of proper show cause notice to assessee, penalty u/s 271(1)(c) cannot be levied and therefore urged that penalty levied by AO be deleted. Ld.D.R. on other hand, supported order of lower authorities. 5. We have heard rival submissions and perused material on record. issue in present case is with respect to levy of penalty u/s 271(1)(c) of Act. Before us, Ld.A.R. submitted that while framing assessment u/s 143(3) of Act, AO had made aggregate additions / disallowances of Rs.49,03,703/-. perusal of assessment order passed u/s 143(3) of Act reveals that in assessment order AO had not recorded clear satisfaction as to whether assessee had furnished inaccurate particulars of income or has concealed particulars of income, more so he has recorded satisfaction for concealment of income as well as for furnishing of inaccurate particulars of income. Thereafter, in penalty order passed u/s 271(1)(c) of Act, AO had levied penalty for concealment of income as well as for furnishing inaccurate particulars of income. It is settled law that while levying penalty, AO has to record clear satisfaction and thereafter come to finding in respect of one of limbs, which is specified under section 271(1)(c) of Act. first step is to record satisfaction while completing assessment as to whether assessee had furnished inaccurate particulars of income or concealed his income. Thereafter, notice u/s 274 read with 4 Section 271(1)(c) of Act is to be issued to assessee. Assessing Officer thereafter has to levy penalty under Section 271(1)(c) of Act for non-satisfaction of either of limbs. While completing assessment, Assessing Officer has to come to finding as to whether assessee has concealed his income or furnished inaccurate particulars of income. Hon ble Bombay High Court in CIT Vs. Shri Samson Perinchery (supra) held that where initiation of penalty is one limb and levy of penalty is on other limb, then in absence of proper show cause notice to assessee, there is no merit in levy of penalty. 6. Considering facts of present case in light of decision of Hon ble Bombay High Court in case of Samson Perinchery (supra), we are of view that in present case, basic condition for levy of penalty has not been fulfilled and that penalty order suffers from non-exercising of jurisdiction power and therefore penalty order cannot be upheld. We accordingly set aside penalty order passed by AO. Thus, ground of assessee is allowed. 7. In result, appeal of assessee is allowed. Order pronounced on 6th day of September, 2019. Sd/- Sd/- (SUSHMA CHOWLA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Pune Dated 6th September, 2019. Yamini Copy of Order forwarded to 1. Appellant 2. Respondent 3. CIT(A)-1, Nashik. 4. Pr.CIT-1, Nashik. 5 DR, ITAT, Pune; 6. Guard file. / BY ORDER Sr. Private Secretary ITAT, Pune. Prakash Harishchandra Kanhekar v. Dy. Commissioner of Income-tax, Circle11, Pune