MAYANK SINGH MEHRA,NAINITAL vs. ITO, NAINITAL
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Income Tax Appellate Tribunal, DELHI “DB” “SMC” BENCH: NEW DELHI
Before: SHRI KUL BHARAT & SHRI M BALAGANESH
1 ITA No. 100/DDN/2019 Mayank Singh Mehra IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “DB” “SMC” BENCH: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER & SHRI M BALAGANESH, ACCOUNTANT MEMBER
ITA No.100/DDN/2019 [Assessment Year : 2010-11] Mayank Singh Mehra v ITO Oak Over Cottage, Mallital, s Nainital Nainital, Uttarakhand Uttarakhand PAN: ABIPM5085E APPELLANT RESPONDENT Appellant by Sh. Sharad Kumar Vishnoi, Adv Respondent by Sh. A. S. Rana, Sr. Ld. DR Date of Hearing 22.11.2023 Date of 23.11.2023 Pronouncement
ORDER PER KUL BHARAT, JM : This appeal filed by the assessee is directed against the order
of Ld. Commissioner of Income Tax (Appeals), Haldwani, dated
16/05/2019 pertaining to the Assessment Year 2010-11. The
assessee has raised the following grounds of Appeals.
“1. The primary burden of proof, thereof, is on the revenue. The Statute requires a satisfaction on the part of the assessing officer. He is required to arrive at a
2 ITA No. 100/DDN/2019 Mayank Singh Mehra satisfaction so as to show that there is primary evidence to establish that the assessee had concealed the amount of furnished inaccurate particulars and this onus is to be discharges by the department (see D.M Manasvi v/s C.I.T. (1973)3 Scc 207)"
"In the same case, the hon'ble Supreme Court of India held that merely because the assessing office is satisfied during the course of assessment proceedings that assessee has concealed particulars of income or filed inaccurate particulars, than levy of penalty will not be automatic. The Hon'ble Supreme court of held as under (head notes) "Clause (c) of section 27(1) Income Tax Act. 1961 categorically states that penalty would be livable if the assessee conceals particulars of his Income or furnishes Inaccurate particulars thereof. But by reason of such concealment of furnishing of inaccurate alone, the assessee does not ipso facto becomes liable for penalty. Imposition of penalty is not automatic. Not only is the levy of penalty directionary in nature but the direction is also required to be exercised on the part of the assessing officer keeping the relevant factors in mind. Some of those factors, apart from being inherent in the nature of penalty proceedings, inhere on the face of the statutory provisions. Penalty proceedings are not to be initiated merely to
3 ITA No. 100/DDN/2019 Mayank Singh Mehra harass the assessee. The approach of the Assessing officer in this Behalf must be fair and objective.
"concealment of income "and "furnishing inaccurate particulars" Are different. Both concealment and furnishing of inaccurate particulars refer to deliberate acts on the part of the assessee. A mere omission of negligence would not constitute a deliberate act of suppression very of suggestion falsi."”
Briefly stated facts are that, in this case the assessment was
reopened on the basis of cash deposited in the bank account
amounting to Rs. 11,56,000/- and transaction related to immovable
property amounting to Rs. 28,00,000/-.In response to the statutory
notices, the Ld. Representative of the assessee attended the
proceedings. The Assessing Officer finding that the assessee failed
to explain the source of investment of Rs. 8,99,067/-, he added this
amount. Further, he made addition out of low house hold
withdrawal and non disclosure of interest on fixed deposit. Thus,
he assessed income at Rs. 11,06,430/- and also initiated
proceedings u/s 271(1)(c) of the Income Tax Act, 1961 (in short the
4 ITA No. 100/DDN/2019 Mayank Singh Mehra ‘Act’) separately. Thereafter the Assessing Officer imposed a penalty
of Rs. 4,53,878/- at the 200% of the tax.
Aggrieved against this, the assessee preferred appeal before
the Ld.CIT(A) who dismissed the Appeal, now the assessee is in
Appeal before this Tribunal.
The Ld. Counsel for the assessee apropos to the Grounds of
Appeal submitted that the penalty proceedings are defective on
account of the fact that the notice u/s 271(1)(c) of the Act do not
disclose specific charge further he submitted that the Assessing
Officer levied penalty @ 200% despite the fact that there was no
concealment by the assessee. The action of A.O. is illegal and
unjustified.
On the other hand, the Ld. Departmental Representative
supported the orders of the authorities below.
We have heard the rival submissions and perused the material
available on record. The assessee has placed on record the notice
dated 26/03/2015 issued by the Assessing Officer u/s 271(1)(c). It
is transpired from the said notice, that the Assessing Officer has
5 ITA No. 100/DDN/2019 Mayank Singh Mehra not specified the charge. The law is well settled now that the
Assessing Officer is required to specify the charge. The issuance of
notice is not a merely a formality but it should be as per the
prescribed procedure of law. The Hon'ble High Court of Delhi in the
case of PCIT Vs. Sahara India Life Insurance Company Ltd. (2021)
432 ITR 84 held as under:-
“21. The respondent had challenged the upholding of the penalty imposed under section 271(1)(c) of the Act, which was accepted by the Income-tax Appellate Tribunal. It followed the decision of the Karnataka High Court in CIT v. Manjunatha Cotton and Ginning Factory [2013] 359 ITR 565 (Karm) and observed that the notice issued by the Assessing Officer would be bad in law if it did not specify in which limb of section 271(1)(c) the penalty proceedings had been initiated under, i. e, whether for concealment of particulars of income or for furnishing of inaccurate particulars of income. The Karnataka High Court had followed the above judgment sequent order in CIT v. SSA's Emerald Meadows [2016] 73 taxmann.com 241 (Kam), the appeal against which was dismissed by the Supreme Court of India in SLP No. 11485 of 2016 by an order dated August 5, 2016 (CIT v. SSA's Emerald Meadows [2016] 386 ITR (St.) 13 (SC)).
6 ITA No. 100/DDN/2019 Mayank Singh Mehra 22. On this issue again this court is unable to find any error having been committed by the Income-tax Appellate Tribunal. No substantial question of law arises.”
In the light of the above binding precedent the notice issued by
the Assessing Officer is defective on account of fact that the charge
is not specific. Hence, on the basis of such defective notice the
penalty cannot be sustained we, therefore, direct the Assessing
Officer delete the penalty. The Grounds raised in this Appeal are
allowed.
In the result, the Appeal of the assessee is allowed.
Order pronounced in the open Court on 23rd November, 2023 Sd/- Sd/-
(M BALAGANESH) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER 23/11/2023 *R.N* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
ASSISTANT REGISTRAR ITAT, NEW DELHI
7 ITA No. 100/DDN/2019 Mayank Singh Mehra
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