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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
arising out of the order u/s 271(1)(c) of the Income Tax Act 1961(In short the ‘Act’) dated 28.02.2016 framed by DCIT-1(1), Bhopal.
Usman Khan & 523/Ind/2016 2. Assessee has raised following grounds of appeal;
Assessment Year 2006-07 “1. That on the facts and circumstances of the case, the Ld.CIT(Appeals) erred in confirming the penalty of Rs.16,50,000/- imposed u/s 271(1)(c) of the Act without considering the fact that except addition for household expenses of Rs.75,145/-, other income were already shown buy the appellant in the return filed u/s 153A suomotto as per his own will and paid the taxes due as per return and hence, penalty for concealment is not imposable in this case.
2. That the appellant craves leave to add, to urge, to alter or to amend any of the ground of appeal
on or before the date of hearing” Assessment Year 2008-09 “1. That on the facts and circumstances of the case, the Ld.CIT(Appeals) erred in confirming the penalty of Rs.36,70,000/- imposed u/s 271(1)(c) of the Act without considering the fact that except addition for household expenses of Rs.97,600/- and deposit in bank account Rs.21,000/-, other income were already shown buy the appellant in the return filed u/s 153A suomotto as per his own will and paid the taxes due as per return and hence, penalty for concealment is not imposable in this case.
2. That the appellant craves leave to add, to urge, to alter or to amend any of the ground of appeal on or before the date of hearing”
3. Assessee has raised following additions legal grounds;
1. That the appellant prays leave of this Hon'ble Tribunal to urge the following additional grounds in its appeal:-
A. Whether on the facts and circumstances of the case penalty u/s 271(1) (c ) could have been levied on the assessee in the Usman Khan & 523/Ind/2016 absence of any satisfaction recorded by the Ld. AO either in the show-cause notice or in the penalty order regarding the exact charge viz. either concealment or furnishing of inaccurate particulars, for which penalty u/s 271(1) (c) was being imposed?
B. Whether the Ld. AO was justified in issuing notices u/s 271AAA as well as 271(1)(c ) and that too without specifying any exact charge therein and this also proves that the Ld. AO was not sure about the exact charge under which he sought to impose penalty?
That the aforesaid grounds are purely legal grounds . Raising of such an alternative claim as an additional ground is permissible as held in the case of NTPC v. CIT (1998) 229 ITR 383 SC.
3.That it is therefore prayed that the appellant be allowed to raise and argue these additional grounds since they go to the root of the matter and are essentially legal grounds.
4. That the additional grounds are necessitated to protect the interest of the appellant.
As the issues raised in both the appeals are similar in nature relating to the same assessee they are heard together and being disposed off for sake of convenience and brevity.
During the course of hearing Ld. Counsel for the assessee raised additional legal ground challenging the validity of notice issued u/s 274 r.w.s. 271(1)(c) of the Act claiming it to be illegal Usman Khan & 523/Ind/2016 and bad in law. We find that though the assessee has not raised the legal ground at the time of filing the appeal but in our considered opinion and following the ratio of judgment of Hon'ble Apex Court in the case of National Thermal Power Company Limited 229 ITR 383(SC) as well as in the case of Jute Corporation of India 178 ITR 668 (SC) the additional legal grounds raised before us deserves to be admitted for adjudication, if the same involves point of law which does not require any further investigation of facts. It is also clear that the issues raised in the additional ground of appeal goes to the root of the jurisdiction of the Assessing Officer to levy the penalty u/s 271(1)(c) of the Act and therefore the same are relevant to determine the liability of the assessee for penalty u/s 271(1)(c) of the Act. Accordingly the additional ground is admitted for adjudication.
6. Briefly stated facts as culled out from the records are that the assessee is an individual and derives income from property consultancy and income from other sources. A search was conducted at the assessee’s premises on 26.09.2008. Notices u/s 153A was issued and served upon the assessee on 05.10.2009 and Usman Khan & 523/Ind/2016 in pursuance to it the assessee had filed its return of income declaring total income at Rs.25,03,330/- and Rs.1,09,744/- for Assessment year 2006-07 & 2008-09 respectively. The Assessee further revised the return of income on 13.12.2010 declaring total income at Rs.56,66,744/- for Assessment Year 2008-09. The assessment was completed at the total income of Rs.26,03,475/- and Rs.55,69,344/- after making various additions for Assessment Year 2006-07 & 2008-09 respectively u/s 153A r.w.s. 143(3) of the Act. Aggrieved assessee preferred appeals before Ld. CIT(A) and partly succeeded. Subsequently after initiating penalty proceedings u/s 271(1)(c) of the Act penalty at Rs.16,50,000/- and Rs.36,70,000/- for Assessment Years 2006-07 & 2008-09 was imposed for concealing the income by furnishing wrong particulars of income. Aggrieved assessee preferred an appeal before Ld.CIT(A) but could not succeed.
7. Aggrieved assessee is now in appeal before the Tribunal challenging the legality of the penalty proceedings as well as raising grounds on merits challenging the penalty levied u/s 271(1)(c) of the Act at Rs.16,50,000/- and Rs.36,70,000/-.
Usman Khan & 523/Ind/2016 8. Ld. Counsel for the assessee submitted that as per provisions of Section 271(1)(c) of the Act the penalty can be initiated either for concealing the particulars of income or for furnishing inaccurate particulars of income, whereas the Ld.A.O has not recorded any charge on the assessee, as to whether penalty is to be levied for ‘furnishing inaccurate particulars of income or concealing the particulars of income’. Placing reliance on the judgments mentioned in the written submission which mainly includes judgment of jurisdictional High Court in the case of PCIT Vs Kulwant Singh Bhatia ITA No.9 of 2018 dated 9.5.2018, the Ld. Counsel for the assessee contended that the Ld.A.O has failed in comply the provisions of section 271(1)(c) of the Act by initiating the penalty proceedings with no specific charge. Reliance was also placed on Indore Tribunal decision in the case of Varad Mehta ITA No.693/Ind/16 dated 06.12.2018.
Per contra Departmental Representative vehemently argued supporting the orders of lower authorities.
We have heard rival contentions and perused the records placed before us. The issues raised by the assessee revolves 6 Usman Khan & 523/Ind/2016 around the levy of penalty at Rs.16,50,000/- and Rs.36,70,000/- levied by the Ld. A.O and confirmed by Ld.CIT(A).
Now the assessee is in appeal before the Tribunal, firstly raising the legal issue pleading that Ld. A.O has wrongly initiated the penalty proceedings by not specifying the charge for levy of penalty i.e. whether the penalty proceedings has been initiated for concealing particulars of income or for furnishing the inaccurate particulars of income. It was also pleaded by the Ld. Counsel for the assessee that though the Ld. Assessing Officer has made proper satisfaction on record in the assessment order for initiating penalty proceedings but in the notice issue u/s 274 r.w.s. 271(1)(c) of the Act, but Ld. A.O remained silent by not specifying as for which charge the penalty proceedings have been initiated. To examine this fact we have gone through the impugned notice issued on 30.10.2012 for initiating the penalty proceedings u/s 271(1)(c) of the Act for Assessment Year 2006-07 and 2008-09. For reference we reproduce below the notice u/s 274 of the Act for Assessment Year 2006-07; Usman Khan & 523/Ind/2016 Bhopal Dated 30/10/2012
PENALTY NOTICE u/s 271(1)(c) OF INCOME TAX ACT, 1961 PAN BGYPK0131M To Shri Usman Khan,
Near Victor School Behind Nagar Nigam,
Bhodapur, Gwalior Sir / Madam,
Sub:- Penalty proceeding u/s .. 271( 1 ) ( c) .. of the Income Tax Act 1961 for the AY 2006-07
In connection with the penalty proceedings u/s, 271(1) (c) for the assessment year(s) 2006-07 you are requested to attend my office on 08.11.2011 at 11.00 AM to show cause why penalty should not be imposed. However. if you do not wish to be heard in person in this regard, you may submit your written submissions so as to reach me by the above date which will be considered before disposal of the matter.
Sd/- ( Poonam Rai ) Deputy GommissfsonerOf1ncome Tax-1(1}, Bhopal Bhopal
From perusal of the above show cause notices we find that the Ld.A.O has merely mentioned the section but the specific charge i.e. whether the penalty have been initiated for concealment of Usman Khan & 523/Ind/2016 particulars of income or for furnishing inaccurate particulars of income has not been mentioned. Now whether such type of notice which does not speak about the specific charge leveled against the assessee is valid and tenable in the eyes of law needs to be examined.
We find that similar issue came up for adjudication before us in the case of Varad Mehta dated 06.12.2018 (supra) wherein we have decided the issue in favour of the assessee observing as follows; “11. We have heard rival contentions and perused the records placed before us. The issues raised by the assessee revolves around the levy of penalty at Rs.16,00,000/- levied by the Ld. A.O and confirmed by Ld.CIT(A) on the addition of Rs.51,00,000/- from undisclosed sources for purchase of immovable properties. Perusal of records shows that the assessee remaining negligent and non compliant to various opportunities provided by the Ld. A.O as well as Ld.CIT(A) during the course of penalty proceedings as well as appellate proceedings towards the levy of penalty.
12. Now the assessee is in appeal before the Tribunal, firstly raising the legal issue pleading that Ld. A.O has wrongly initiated the penalty proceedings by not specifying the charge for levy of penalty i.e. whether the penalty proceedings has been initiated for concealing of particulars of income or for furnishing the inaccurate particulars of income. It was also pleaded by the Ld. Counsel for the assessee that though the Ld. Assessing Officer has made proper satisfaction on record in the Usman Khan & 523/Ind/2016 assessment order for initiating penalty proceedings but in the notice issue u/s 274 r.w.s. 271(1)(c) of the Act, but Ld. A.O remained silent by not specifying as to which charge the penalty proceedings have been initiated. To examine this fact we have gone through the impugned notice issued for initiating the penalty proceedings u/s 271(1)(c) of the Act which is placed at Page-52 of the Paper book and the relevant extract is reproduced below: To Shri Varad Mehta 239, Sunny Palace M P Nagar Zone-1, Bhopal Sir / Madam, Sub:- Penalty proceeding u/s .. 271( 1 ) ( c) .. of the Income Tax Act 1961 for the AY 2008.09 In connection with the penalty proceedings u/s, 271(1) (c) for the assessment year(s) 2008-09 you are requested to attend my office on 18.01. 2010 at 11.00 AM to show cause why penalty should not be imposed. However. if you do not wish to be heard in person in this regard, you may submit your written submissions so as to reach me by the above date which will be considered before disposal of the matter. Sd/- ( Shrlkant Namdeo ) Deputy GommissfsonerOf1ncome Tax-1(1}, Bhopal Bhopal 13. From perusal of the above show cause notice we find that the Ld.A.O has merely mentioned the section but the specific charge i.e. whether the penalty have been initiated for concealment of particulars of Usman Khan & 523/Ind/2016 income or for furnishing inaccurate particulars of income has not been mentioned. Now whether such type of notice which does not speak about the specific charge leveled against the assessee is valid and tenable in the eyes of law needs to be examined.
We find that similar issue came up before the jurisdictional High Court in the case of Shri Kulwant Singh Bhatia (supra) wherein the Hon'ble Court discussed the judgment of Hon'ble High Court in the case of CIT V/s Manjunatha Cotton Ginning Factory (supra) and CIT V/s SSA’s Emeralad Meadows (supra) held that “on due consideration of the arguments of the Ld. counsel for the appellant, so also considering the fact that the ground mentioned in show cause notice would not specify the requirement of law, as notice was not specific, we are of the view that Ld. Tribunal has rightly allowed the appeal of the assessee and set aside the order of penalty enforced by the authority”.
15. Similarly in the case of CIT V/s Manjunatha Ginning Factory, Hon'ble High Court of Karnataka held that “the notice issued u/s 274 r.w.s. 271(1)(c) of the Act should specifically mention the ground in section 271(1)(c) whether concealment of income or for furnishing in accurate particulars of income. Sending printed form where all ground of section 271(1)(c ) would not mentioned the specific requirement of law. Assessee should know the grounds on which he has charged specific otherwise opportunities of natural justice denied. On the basis of such proceedings no penalty could be imposed to the assessee. Taking up the penalty proceedings on one limb and finding the assesssee in another limb is bad in law”. Though in the instant appeal the Ld. A.O has made proper satisfaction in the body of the assessment order but in the notice issued u/s 274 r.w.s. 271(1)(c) of the Act he failed to mention the limbs for which penalty proceedings have been initiated. It is the negligence of the Ld. A.O in not making proper specific charge in the notice u/s 274 about the addition for which penalty proceedings have been initiated. Ld. A.O Usman Khan & 523/Ind/2016 should be clear as to whether the alleged addition goes under the limb of “concealment of particulars of income” or “furnishing inaccurate particulars of income”. Merely issuing notice in general proforma will negate the very purpose of natural justice as held by the Hon'ble Apex Court in the case of Dilip N Shraf 161 Taxmann 218 that “the quasi- criminal proceedings u/s 271(1)(c) of the Act ought to comply with the principles of natural justice.
14. We therefore respectfully following above referred judgments and in the given facts and circumstances of the case are of the considered view that the alleged notice issued u/s 274 r.w.s. 271(1)(c) of the Act dated 31.12.10 is invalid, untenable and suffers from the infirmity of non application of mind by the Assessing Officer. We accordingly direct to delete the penalty of Rs.16,00,000/- imposed u/s 271(1)(c) on this ground itself. We accordingly allow the additional ground raised by the assessee on the legality of the penalty proceedings initiated u/s 271(1)(c) of the Act. Since the penalty u/s 271(1)(c) also has been dealt on the preliminary points other arguments of the assessee dealing with the merits of the levy of penalty are not been dealt with, as the same are rendered academic in nature and the appeal of the assessee for the Assessment Year 2008-09 is allowed”.
14. We therefore respectfully following above referred judgments and in the given facts and circumstances of the case are of the considered view that the alleged notice issued u/s 274 r.w.s.
271(1)(c) of the Act dated 30.10.12 is invalid, untenable and suffers from the infirmity of non application of mind by the Assessing Officer. We accordingly direct to delete the penalty of Usman Khan & 523/Ind/2016 Rs.16,50,000/- and Rs.36,70,000/- for Assessment Years 2006-07 and 2008-09 respectively imposed u/s 271(1)(c) on this ground itself. We accordingly allow the additional ground raised by the assessee on the legality of the penalty proceedings initiated u/s 271(1)(c) of the Act. Since the issue of penalty u/s 271(1)(c) also has been dealt on the preliminary points other arguments of the assessee dealing with the merits of the levy of penalty are not been dealt with, as the same are rendered academic in nature and thus the appeal of the assessee for the Assessment Year 2006-07 & 2008-09 are allowed.
In the result appeals of the assessee are allowed.
The order pronounced in the open Court on 25.03.2019.