NITIN RAJ MARWAH,MUMBAI vs. DY. COMMISSIONER OF INCOME TAX 10(2)(2), MUMBAI

PDF · subscribers
ITA 2252/MUM/2023Status: DisposedITAT Mumbai27 September 2023AY 2014-20154 pages
AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the penalty notice issued under section 274 r/w section 271(1)(c) was defective as it did not strike off either the charge of concealment of particulars or furnishing inaccurate particulars. Following the jurisdictional High Court's decision, the penalty proceedings were quashed.

What were the facts?

The assessee claimed a deduction under section 35(1)(iii) for donations, which was later withdrawn during assessment. Subsequently, a penalty was levied under section 271(1)(c) for the assessment year 2014-15. The CIT(A) upheld the penalty.

What were the issues?

Whether the penalty levied under section 271(1)(c) is valid when the penalty notice fails to specify the exact charge against the assessee.

Which sections of the Income-tax Act were involved?

Section 35(1)(iii),Section 271(1)(c),Section 274

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, “B” BENCH, MUMBAI

Before: SHRI PRASHANT MAHARISHI & SHRI SANDEEP SINGH KARHAIL

For Appellant: Ms. Pooja Pitale
For Respondent: Shri Ashok Kumar Ambastha

The present appeal has been filed by the Legal Heir of the assessee challenging the impugned order dated 19/05/2023, passed under section 250 of the Income Tax Act, 1961 ("the Act") by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [“learned CIT(A)”], which in turn arose from the penalty order dated 27/04/2017 passed under section 271(1)(c) of the Act, for the assessment year 2014-15.

2.

The only dispute raised by the assessee, in the present appeal, is against the levy of penalty of Rs.14,87,062, under section 271(1)(c) of the Act.

Nitin Raj Marwah ITA no.2252/Mum./2023

3.

The brief facts of the case pertaining to this issue, as emanating from the record, are: The assessee is an individual and his main source of income was salary from M/s.Marwah Steels Private Limited, in the capacity as Director. Besides, the assessee declared income from house property and income from other sources. For the year under consideration, the assessee filed its return of income on 29/07/2014, declaring a total income of Rs.84,31,240. The return filed by the assessee was selected for scrutiny and statutory notices under section 143(2) as well as section 142(1) of the Act were issued and served on the assessee. During the assessment proceedings, it was observed that the assessee has claimed deduction under section 35(1)(iii) of the Act amounting to Rs.43,75,000, on account of donations given to the trusts/institutions. During the assessment proceedings, the assessee filed revised computation of total income withdrawing the weighted deduction claimed under section 35(1)(iii) of the Act aggregating to Rs.43,75,000, on account of donations given to trusts/institutions. Accordingly, the Assessing Officer (“AO”) vide order dated 31/10/2016, passed under section 143(3) of the Act, inter-alia, disallowed the deduction of Rs.43,75,000, claimed under section 35(1)(iii) of the Act and added the same to the total income of the assessee.

4.

Subsequently, the penalty order dated 27/04/2017, was passed by the AO under section 271(1)(c) of the Act wherein a penalty of Rs.14,87,062, was levied. In the further appeal against the penalty order, the learned CIT(A), vide impugned order, dismissed the appeal filed by the assessee and upheld

Nitin Raj Marwah ITA no.2252/Mum./2023 the levy of penalty under section 271(1)(c) of the Act. Being aggrieved, the assessee is in appeal before us.

5.

During the hearing, the learned Authorised Representative (“learned AR”) submitted that the penalty in the present case has been levied without specifying the head under which the same has been levied. The learned AR by referring to the penalty notice dated 31/10/2016, issued under section 274 r/w section 271(1)(c) of the Act submitted that the AO has not specified whether the penalty has been levied for concealment of particulars of income or for furnishing inaccurate particulars of income.

6.

On the other hand, the learned Departmental Representative (“learned DR”) vehemently relied upon the order passed by the lower authorities.

7.

We have considered the rival submissions and perused the material available on record. In the present case, the AO initiated penalty proceedings under section 271(1)(c) of the Act and levied a penalty of Rs.14,87,062. From the perusal of the notice dated 31/10/2016, issued under section 274 r/w section 271(1)(c) of the Act, we find that the AO did not strike–off any of the twin charges i.e., concealment of particulars of income or furnishing of inaccurate particulars of income. The case of the assessee is squarely covered by the decision of the Hon'ble Jurisdictional High Court in Mohd. Farhan A. Shaikh v/s CIT, [2021] 434 ITR 1 (Bom.), wherein the Larger Bench of the Hon’ble Court has held that the defect in notice by not striking off the irrelevant matter would vitiate the penalty proceedings. Accordingly, respectfully following the aforesaid decision of the Hon'ble Jurisdictional High

Nitin Raj Marwah ITA no.2252/Mum./2023 Court, the penalty order passed under section 271(1)(c) of the Act is quashed.

8.

In the result, the appeal by the assessee is allowed. Order pronounced in the open Court on 27/09/2023

Similar judgments

Other orders that rely on the same authority or decide the same section.

More judgments on Section 35(1)(iii)

All 32 judgments and leading authorities on Section 35(1)(iii) →

Latest GST High Court judgments

Search GST case law →