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Income Tax Appellate Tribunal, JAIPUR BENCHES (SMC
Before: Shri Ramesh C.Sharmavk;dj vihy la-@ITA No. 979/JP/2016
PER RAMESH C. SHARMA, AM This is an appeal filed by the assessee against the order of the ld. CIT(A)- Ajmer dated 09-08-2016 for the Assessment Year 2011-12, in the matter of penalty of Rs.73,000/- imposed u/s 271(1)(c) of the Income Tax Act, 1961. 2.1 This appeal was earlier decided by the Tribunal by passing ex-parte order dated 13-04-2017. Thereafter, the assessee filed the Misc. Application for recalling the ex-parte order. The Tribunal vide its order dated 18-08-2017 recalled its earlier order dated 13-04-2017 and the Registry was directed to fix the case Shri Ramesh Kabra vs ITO, Ward-1, Kishangarh for hearing afresh before the regular Bench. Now this appeal is again put up
before this Bench for hearing.
2 I have considered the rival contentions and carefully gone through the orders of the authorities below and found that the AO estimated the 10% of Net
Profit at Rs.4,28,000/- and added in the declared income of the assessee. Penalty
proceedings were initiated. In the last, the AO at para 7 page 6 of penalty order
levied the penalty by holding that ‘’the above facts clearly establish on record
that the assessee has concealed income chargeable to tax and furnished
inaccurate particulars of income and thereby caused loss to the revenue.’’
3 From the record, I found that prior to levy of penalty a Notice u/s 274 of the Act was issued which was in a fixed format and did not mention the limb on which the AO issued the notice to levy the penalty. Hon’ble Karnataka High
Court in the case of CIT vs SSA’s Emarald Meadows in ITA No. 380 of 2015
relying upon the decision of Hon’ble High Court in the case of CIT vs Manjunath
Cotton and Ginning Factory, 359 ITR 565 held that ITAT allowed the appeal
holding that the notice issued by the AO u/s 274 is bad in law as it did not specify
which limb of Section 271(1)© of the Act, the penalty proceedings had been initiated. Hon’ble Supreme Court of India in this case dismissed the SLP filed by the Department. Moreover, Hon’ble Karnataka High Court in the case of CIT vs
Manjunath Cotton and Ginning Factory has upheld in conclusion part para 63 sub para ‘’p, q and r’’ that notice u/s 274 of the Act should specifically state the 2 Shri Ramesh Kabra vs ITO, Ward-1, Kishangarh grounds mentioned in section 271(1)© of the Act i.e. whether it is for concealment of income or for furnishing of incorrect particulars of income. It was held that the sending printing form where all the grounds are mentioned in Section 271could not satisfy requirement in law and the assessee should know the grounds which he has to reply specifically otherwise principle of natural justice
is offended and on the basis of such proceedings, no penalty could be imposed to the assessee. Recently Hon’ble Bombay High Court in the case of CIT vs Samson
Perinchery has held that penalty should be clear as to the limb for which it is levied and the position being unclear the penalty is not sustainable. They relied
upon the decision of Hon’ble Supreme Court in the case of Ashok Pai vs CIT 292
ITR 11 where Hon’ble Apex Court observed that concealment of income and furnishing of inaccurate particulars of income in Section 271(1)© of the Act have different meaning. ITAT Jaipur Bench in the case of Shankarlal Khandelwal vs
DCIT in ITA No. 878/JP/2013 and in the case of Lalchand Mittal, Jaipur vs DCIT
in ITA No.772/JP/2016 has held that penalty is not leviable under these
circumstances.
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In view of the above facts and circumstances of the case and applying the judicial pronouncements discussed above to the facts of the instant case, I do not find any justification for imposition of penalty and the same is directed to be deleted.
3 Shri Ramesh Kabra vs ITO, Ward-1, Kishangarh
0 In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 03 /08/2020. ¼jes’k lh 'kekZ½ (Ramesh C. Sharma) ys[kk lnL;@ Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 03 /08/ 2020 *Mishra
आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Ramesh Kabra, Kishgangarh izR;FkhZ@ The Respondent- The ITO Ward—1, Kishangarh 2. vk;dj vk;qDr¼vihy ) @ CIT(A), 3. 4. vk;dj vk;qDr@ CIT, 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZ QkbZy@ Guard File (ITA No.979/JP/2016) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत
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