DCIT, CC-7(1), MUMBAI vs. M/S MANEESH PHARMACEUTICALS LTD., MUMBAI

Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the penalty u/s 271(1)(c) on the ground that the inapplicable limb of charge for the penalty was not struck off by the A.O. in the notice u/s 274 r.w.s. 271(1)(c), whereas the fact is that no limb of charge i.e. neither furnishing inaccurate particulars of income nor concealment of income, was inapplicable as per the satisfaction recorded by the A.O. under section 271(1B) in the assessment order, which was duly served on the assessee making it aware of the charges of penalty.

The relevant facts, in brief, are that assessment under Section 143(3) read with Section 153A of the Act was framed for the Assessment Year 2010-11 on the Assessee, vide order dated 31.03.2016. The Assessing Officer made the following additions/disallowance and initiated penalty proceedings in relation thereto:

Notice, dated 31.03.2016, in respect of penalty proceedings was issued under Section 274 read with Section 271(1)(c) of the Act (hereinafter referred to as the „First Penalty Notice‟). However, since the Assessee preferred appeal before the CIT(A) against the Assessment Order, dated 31.03.2016, the penalty proceedings were kept in abeyance. The CIT(A), vide order, dated 11.10.2018, partly allowed the appeal of the Assessee. The Assessee did not press addition of INR 7,46,225/- on account of transfer pricing adjustment and disallowance of deduction of INR 8,31,70,675/- under Section 10B of the Act in view of the fact that the Assessee had incurred losses for the Assessment Year 2010-11. Therefore, the aforesaid addition/disallowance was confirmed by the CIT(A).

Being aggrieved, the Assessee preferred appeal before CIT(A) and contended that the penalty order, dated 31.03.2022, was bad in law since the Assessing Officer had failed to specify in the notice issued under Section 274 of the Act proposing to levy penalty under Section 271(1)(c) of the Act as to whether in the case of the Assessee there was concealment of particulars of income, or furnishing of inaccurate particulars of income. The CIT(A) accepted the aforesaid contention of the Assessee and deleted the penalty vide order, dated 27.07.2022, by relying upon the Full Bench judgment of the Hon‟ble Bombay High Court in the case of Mohd. Farhan A Shaikh Vs. DCIT, Central Circle-1, Belgaum : 434 ITR 1 (Bombay) holding as under: “9.14. Turning to the facts of extant case, the penalty was levied in this case on account of disallowance of deduction u/s 10B and ALP adjustments. In respect of both these issues, Id. AO has levied penalty under section 271(1)(c) of the Act concluding that "the assessee company has furnished inaccurate particulars of income. In the assessment order dated 31.03.2022, it is mentioned that "Penalty proceedings u/s 271(1)(c) of the I.T. Act are separately initiated for furnishing of inaccurate income", however, the Assessing Officer has initiated penalty proceedings by issue of notice under section 274 r.w.s. 271 dated 31.03.2002 without specifying the charge brought against the appellants that is, whether it was for concealment of particulars of income or for furnishing of inaccurate particulars of income. I find from the notice issued u/s 274 r.w.s. 271 of the Act that the AO did not strike off one of the two limbs of penalty in the said notice and as such it was an omnibus notice not having the charge Assessment Year: 2010-11 specified for which the penalty was initiated. A copy of the notice was forwarded to the Id. AO and he has also not controverted the fact that the notice was issued without striking off the limb which was not applicable. Hence, respectfully following the judgment of Full Bench of the Hon'ble jurisdictional High Court, and other decisions referred to above, am construed to hold that the penalty in this case gets vitiated as the notice issued u/s 274 r.w.s. 271 has to be held as void-ab-initio. I, therefore, overturn the impugned order and direct to delete the penalty. The additional grounds of appeal

The Ld. Departmental Representative submitted that the Penalty Order, dated 31.03.2022, referred to two show-cause notices dated 16.01.2021 and 12.09.2021 in paragraph 6 of the Penalty Order. A perusal of notice, dated 16.01.2021, would make it clear that the Assessee was asked to show-cause why penalty under Section 271(1)(c) of the Act should not be levied for furnishing inaccurate particulars of income. The Ld CIT(A) did not examine the said show-cause notice on the basis of which penalty was levied. Therefore, the order of CIT(A) is not on facts mentioned in the penalty order and is untenable. The requirement to issue show-cause notices under Section 274 of the Act is only a procedural requirement before levying penalty. There is no time limit prescribed for issue of notice under Section 274 of the Act. She further submitted that in the present case the Penalty Order has been passed in accordance with the procedural requirements. In the case of Mohd. Farhan A Shaikh (434 ITR 1), the Hon'ble Bombay High Court has held that an assessee must be informed of the grounds of initiating penalty proceedings only Assessment Year: 2010-11 through statutory notice. As apparent from the facts stated above, the Assessee was clearly informed of the grounds of initiating penalty proceedings through the statutory notice, dated 16.01.2021, issued under Section 274 of the Act. There is no vagueness and thereby, no infirmity in the Second Penalty Notice. There was sufficient compliance time (of more than 16 months) given by the Assessing Officer to the Assessee before finally levying the penalty under Section 271(1)(c) of the Act vide Penalty Order, dated 31.03.2022. In view of the above, she contended that the Penalty Order, dated 31.03.2022, passed by the Assessing Officer was valid and that the order passed by the CIT(A) was bad in law and therefore, liable to be set aside.

In response, the Ld. Authorised Representative for the Assessee vehemently contended that the order passed by CIT(A) does not suffer from any infirmity. The issue raised by the Revenue in the present appeal is covered in favour of the Assessee by the Full Bench judgment of the Hon‟ble Bombay High Court in the case of Mohd. Farhan A Shaikh (supra) as the penalty notice, dated 31.03.2016, has been issued without deleting or striking off inapplicable part. Thus, the Assessee has not been informed whether penalty proceedings were initiated for furnishing inaccurate particulars of income or for concealment of income. He also relied upon the judgment of the Hon‟ble Karnataka High Court in the case of Commissioner of Income-Tax Vs Manjunatha Cotton & Ginning Factory, 359 ITR 565, and also the judgment of the Hon‟ble Supreme Court in the case of Commissioner of Income-tax Vs. SSA‟S Emerlad Meadows, 73 taxmann.com 248. The Ld. Authorised Representative for the Appellant submitted that the First Penalty notice was bad in law and the subsequent penalty notices issued by the Assessing Officer were not relevant. 6 Assessment Year: 2010-11 In any case the Assessee had raised additional ground before the CIT(A) that the notices were vague and had been issued without application of mind. Thus, depriving the Assessee a reasonable opportunity to defend. The Assessing Officer did not submit any reply/report in relation to the aforesaid additional ground despite a letter dated 18.07.2022, sent by the CIT(A) to the Assessing Officer asking the Assessing Officer to submit the report/reply. Therefore, the submissions advanced by the Ld. Departmental Representative are of no relevance and therefore, should be rejected.

We have considered the rival submissions (including the written submissions by the Revenue, dated 07.12.2022 and counter submission thereto by the Assessee) and perused the material on record. Before us, the Ld. Authorised Representative for the Assessee had vehemently contended that the issue raised by the Revenue in the present appeal stands decided in favour of the Assessee by the Full Bench judgment of the Hon‟ble Bombay High Court in the case of Mohd. Farhan A Shaikh (supra) as the First Penalty Notice was issued without striking off the inapplicable portion being “have concealed the particulars of income”. Whereas it was contended by the Ld. Departmental Representative that penalty was levied after issuing the Second Penalty Notice whereby the charge against the Assessee (i.e. furnishing inaccurate particulars of income) was made known to the Assessee and therefore, the Second Penalty Notice meets the test laid down by the Full Bench of the Hon‟ble Bombay High Court in the aforesaid judgment.

We note that in the case of Manjunatha Cotton & Ginning Factory (supra) the Hon‟ble Karnataka High Court has made following Assessment Year: 2010-11 observations regarding issuance of notice under Section 274 of the Act: “Notice under section 274 59. As the provision stands, the penalty proceedings can be initiated on various grounds set out therein. If the order passed by the authority categorically records a finding regarding the existence of any said grounds mentioned therein and then penalty proceedings is initiated, in the notice to be issued under section 274, they could conveniently refer to the said order which contains the satisfaction of the authority which has passed the order. However, if the existence of the conditions could not be discerned from the said order and if it is a case of relying on deeming provision contained in Explanation 1 or in Explanation 1(B), then though penalty proceedings are in the nature of civil liability, in fact, it is penal in nature. In either event, the person who is accused of the conditions mentioned in section 271 should be made known about the grounds on which they intend imposing penalty on him as section 274 makes it clear that the assessee has a right to contest such proceedings and should have full opportunity to meet the case of the Department and show that the conditions stipulated in section 271(1)(c) do not exist as such he is not liable to pay penalty. The practice of the Department sending a printed form where all the grounds mentioned in section 271 are mentioned would not satisfy the requirement of law when the consequences of the assessee not rebutting the initial presumption is serious in nature and he had to pay penalty from 100 per cent. to 300 per cent. of the tax liability. As the said provisions have to be held to be strictly construed, notice issued under section 274 should satisfy the grounds which he has to meet specifically. Otherwise, the principles of natural justice is offended if the show-cause notice is vague. On the basis of such proceedings, no penalty could be imposed on the assessee. 60. Clause (c) deals with two specific offences, that is to say, concealing par ticulars of income or furnishing inaccurate particulars of income. No doubt, the facts of some cases may attract both the offences and in some cases there may be overlapping of the two offences but in such cases the initiation of the penalty proceedings also must be for both the offences. But drawing up penalty proceedings for one offence and finding the assessee guilty of another offence or finding him guilty for either the one or the other cannot be sustained in law. It is needless to point out the satisfaction of the existence of the grounds mentioned in section 271(1)(c) when it is a sine qua non for initiation or proceedings, the penalty proceedings Assessment Year: 2010-11 should be confined only to those grounds and the said grounds have to be specifically stated so that the assessee would have the opportunity to meet those grounds. After, he places his version and tries to substantiate his claim, if at all, penalty is to be imposed, it should be imposed only on the grounds on which he is called upon to answer. It is not open to the authority, at the time of imposing penalty to impose penalty on the grounds other than what the assessee was called upon to meet. Otherwise, though the initiation of penalty proceedings may be valid and legal, the final order imposing penalty would offend the principles of natural justice and cannot be sustained. Thus, once the proceedings are initiated on one ground, the penalty should also be imposed on the same ground. Where the basis of the initiation of penalty proceedings is not identical with the ground on which the penalty was imposed, the imposition of penalty is not valid. The validity of the order of penalty must be determined with reference to the information, facts and materials in the hands of the authority imposing the penalty at the time the order was passed and further discovery of facts subsequent to the imposition of penalty cannot validate the order of penalty which, when passed, was not sustainable. 61. xx xx

xx xx CONCLUSION 63. In the light of what is stated above, what emerges is as under: (a) Penalty under section 271(1)(c) is a civil liability. xx xx (p) Notice under section 274 of the Act should specifically state the grounds mentioned in section 271(1)(c), i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income (q) Sending printed form where all the grounds mentioned in section 271 are mentioned would not satisfy the requirement of law. (r) The assessee should know the grounds which he has to meet specifically. Otherwise, the principles of natural justice is offended. On the basis of such proceedings, no penalty could be imposed to the assessee.

The facts in the present case are peculiar to the extent that in total five additions/disallowances were made by the Assessing Officer while framing assessment under Section 143(3) read with Section 153A of the Act. As stated the paragraph 3 above, in respect of three additions/disallowances penalty proceedings were initiated for furnishing inaccurate particulars of income, whereas in respect of two additions/disallowances penalty proceedings were initiated for concealment of income. In our Assessment Year: 2010-11 view, the CIT(A) has failed to consider the aforesaid facts while concluding that the Assessing Officer erred in not striking off one of the two limbs of penalty in the First Penalty Notice. Further, the penalty proceedings initiated under Section 271(1)(c) of the Act were kept in abeyance till the disposal of the quantum appeal by the CIT(A). After disposal of the quantum appeal by the CIT(A) vide order, dated 11.10.2018, Second Penalty Notice was issued by the Assessing Officer. However, the CIT(A) has also failed to consider the Second Penalty Notice while deleting the penalty. The relevant extract of the Second Penalty Notice read as under: “Sir/Madam, Whereas in the course of proceedings before me for the Assessment Year 2010-11, it appears to me that you have furnished inaccurate particulars of income. xx xx xx xx Additional Remarks: In connection with the same, it is to inform you that penalty proceeding U/s 271(1)c) of the LT Act, 1961 was initiated in your case for the A.Y.2010-11, while completing the assessment u/s 143(3) rws 153A of the I.T. Act on 31.03.2016 which was kept in abeyance in view of the first appeal before the Ld. CIT(A). Your kind attention is invited towards the order of Ld.CIT(A) dated 11.10.2018 for the AY 2010-11 wherein the Ld. CIT(A) has confirmed the disallowance of deduction u/s.10B amounting to Rs.52,04,147/-. In view of the above facts, you are hereby show caused as to why penalty u/s 271(1)(c) of the I.T. Act, 1961 should not be levied in your case for filing inappropriate particulars. Kindly note that your reply should reach this office on or before 25.01.2021. Alternatively you can send your reply on the mail ID mentioned above.” (Emphasis Supplied) 14. On perusal of the above, it can be seen that the Second Penalty Notice clearly puts the Assessee to notice about the charge of furnishing inaccurate particulars of income in respect of Assessment Year: 2010-11 deduction claimed under Section 10B of the Act. Thus, the Second Penalty Notice fulfills the requirement of the Assessee being informed about the grounds of penalty proceedings through statutory notice issued under Section 274 of the Act and therefore, meets the test laid down by the Hon‟ble Bombay High Court as regards levy of penalty in relation to disallowance of deduction under Section 10B of the Act is concerned.

We reject the contention advanced on behalf of the Assessee that only the First Penalty Notice is relevant for determining the fate of the penalty proceedings whereas the subsequent penalty notices are irrelevant. The issuance of notice under Section 274 of the Act is not a jurisdictional requirement. The Assessing Officer does not obtain jurisdiction to levy penalty by issuing notice under Section 274 of the Act. As per Section 271(1)(c) of the Act the Assessing Officer acquires jurisdiction to levy penalty if the Assessing Officer, in the course of assessment proceedings, is satisfied that the Assessee has concealed particulars of income he may direct that such person shall pay penalty. The aforesaid satisfaction should either be recorded in the Assessment Order or discernible from the Assessment Order. The requirement of „due process‟ in built in Section 274 of the Act for fair administration of justice provides that no order imposing penalty shall be made unless such assessee is heard or is granted reasonable opportunity of being heard. Thus, issuance of notice under Section 274 of the Act is the statutory requirement before passing the penalty order.

By issuance of Second Penalty Notice the aforesaid requirement contained in Section 274 of the Act stood fulfilled. It is not the case of the Assessee that requisite satisfaction for initiation of Assessment Year: 2010-11 penalty proceedings was not recorded in the Assessment Order. Further, the Assessee was also granted sufficient time to meet the case of the Revenue for levy of penalty in relation to the disallowance of deduction under Section 10B of the Act during the penalty proceedings. The Penalty Order also meets the test laid down by the Hon‟ble Karnataka High Court since the case before us is not one in which penalty proceedings were taken up on one limb of Section 271(1)(c) of the Act and the assessee was found guilty under another limb of the said section. A perusal of paragraph 5.7 of the Assessment Order shows that in respect of disallowance of deduction under Section 10B of the Act, the Assessing Officer had initiated penalty proceedings for furnishing inaccurate particulars of income. In the Penalty Order, penalty has been levied for furnishing inaccurate particulars of income. Thus, penalty under Section 271(1)(c)of the Act has been levied on the same ground on which penalty proceedings were initiated. Thus, in view of the above, we hold that the Second Penalty Notice was a valid notice issued under Section 274 of the Act and that the CIT(A) erred in deleting the penalty on the ground that First Penalty Notice issued under Section 274 read with Section 271(1)(c) of the Act was void-ab-initio without taking into the consideration complete facts of the case and the Second Penalty Notice. Accordingly, we set aside the order passed by the CIT(A) in this regard and remand the issue of levy of penalty for furnishing inaccurate particulars of income in relation to deduction claimed under Section 10B of the Act back to the file of CIT(A) for adjudication on merits.

While we have held that the Second Penalty Notice was valid notice issued under Section 274 of the Act, we note that the same did not make any reference to furnishing of inaccurate 13 Assessment Year: 2010-11 particulars of income in relation to the transfer pricing addition of INR 7,46,225/-. Whereas, in the penalty order, penalty has also been levied in respect of the transfer pricing addition of INR 7,46,225/-. Therefore, it can be taken the Assessing Officer had only pursued levy of penalty in relation to disallowance of deduction under Section 10B of the Act after the order passed by the CIT(A) in quantum appeal and did not put the Assessee to notice in relation to penalty for furnishing inaccurate particulars of income pertaining to the transfer pricing addition of INR 7,46,225/-. Further, it was also contended by the Ld. Departmental Representative that the penalty has been levied on the basis of Second Penalty Notice. Thus, no penalty can be levied in relation to the transfer pricing addition of INR 7,46,225/-. Accordingly, we confirm the order of the CIT(A) of deleting penalty under Section 271(1)(c) of the Act in respect of transfer pricing addition of INR 7,46,225/- though for different reasons.

In view of the above, the present appeal filed by the Revenue is partly allowed.