M/S- GANAPATI TRANSPORT,DHENKANAL vs. ITO, DHENKANAL, DHENKANAL

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM आयकर अपीऱ सं./ITA No.161/CTK/2019 (नििाारण वषा / Assessment Year :2010-2011) M/s Ganapati Transport, Vs. ITO Dhenkanal, Dhenkanal C/o-Mr. Khemchand Agarwalla Kali Bazar, At/Po-Bhuban, Dist-Dhenkanal-759017 स्थायी लेखा सं./PANNo. : AAGFG 0597 A (अऩीलाथी /Appellant) (प्रत्यथी / Respondent) .. ननधाारिती की ओर से /Assessee by : Shri Natabar Panda, Advocate िाजस्व की ओर से /Revenue by : Shri Subhendu Dutta, DR

सुनवाई की तािीख / Date of Hearing : 05/11/2019 घोषणा की तािीख/Date of Pronouncement : 06/11/2019 आदेश / O R D E R Per L.P.Sahu, AM: This appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-2, Bhubaneswar, dated 22.04.2019 for the assessment year 2010-2011. 2. The sole issue involved in this appeal is that the CIT(A) erred in confirming the action of the Assessing Officer in levying penalty u/s.271(1)(c) of the Act of Rs.62,991/-. 3. At the outset, ld Authorised Representative of the assessee filed before us copy of notice issued u/s.274 r.w.s.271(1)(c) of the Act dated 30.06.2015, copy of which is placed on record and pointed out

2 ITA No.161/CTK/2019 therefrom that in the said notice, the Assessing Officer has stated as

under:

"Whereas in the course of proceedings before me for the assessment year 2010-11, it appears to me that you:- ................ have concealed the particulars of your income or....... furnished inaccurate particulars of such income."

u/s.274 r.w.s.271(1)(c) of the Act by the Assessing Officer whether the

show cause is issued to the assessee for concealment of particulars of

income or for furnishing inaccurate particulars of income.

vs. SSA's. Emerald Meadows dated 11th January, 2017 passed in Special

Leave to Appeal (CC No.11485/2016)/73 taxmann.com 248 (SC) has

held that Omission by the AO to explicitly specify in the penalty notice

as to whether penalty proceedings are being initiated for furnishing of

inaccurate particulars or for concealment of income makes the penalty

order liable for cancellation. Hence, he submitted that penalty of

Rs.62,991/- imposed by the Assessing Officer u/s.271(1)(c) is,

therefore, liable to be cancelled.

submission of ld Authorised Representative of the assessee.

perused the orders of lower authorities and materials available on

3 ITA No.161/CTK/2019 record of the Tribunal. We find that the facts in the present appeal are

not in dispute and the Assessing Officer in the order passed

u/s.271(1)(c) of the Act dated 26.03.2018 levied penalty of Rs.

Rs.62,991/-.

Meadows, (2016) 73 taxmann.com 248(SC) dismissed the Special

Leave Petition filed by the Revenue against the judgment rendered by

Hon'ble High Court of Karnataka whereby identical issue was decided

in favour of the assessee. Operative part of the judgment in case of M/s.

SSA's Emerald Meadows (supra) decided by Hon'ble High Court of

Karnataka is reproduced below :-

"2. This appeal has been filed raising the following substantial questions of law: (1) Whether, omission if assessing officer to explicitly mention that penalty proceedings are being initiated for furnishing of inaccurate particulars or that for concealment of income makes the penalty order liable for cancellation even when it has been proved beyond reasonable doubt that the assessee had concealed income in the facts and circumstances of the case? (2 Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in. holding that the penalty notice under Section 274 r.w.s. 271(l)(c) is had in law and. invalid in spite the amendment of Section 271(1 B) with retrospective effect and by virtue of the amendment, the assessing officer has initiated the penalty by properly recording the satisfaction for the same? (3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in deciding the appeals against the Revenue on the basis of notice issued, under Section 274without taking into consideration the assessment order when the assessing officer has specified that the assessee has concealed particulars of income? 3. The Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under Section 274 read with Section 271(1)(c) of the Income Tax Act, 1961 (for short 'the Act') to be bad in law as it did not specify which limb of Section 271(l)(c) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of

4 ITA No.161/CTK/2019 particulars of income or furnishing of inaccurate particulars of income. .The Tribunal, while allowing the appeal of the assessee, has relied 01 the derision of the Division Bench of this Court rendered In the case of COMMISSIONER or INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court, the appeal is accordingly dismissed."

Act apparently goes to prove that the Assessing Officer initiated the

penalty proceedings by issuing the notice u/s 274/271(1)(c) of the Act

without specifying the assessee has concealed ''particulars of income"

or assessee has furnished "inaccurate particulars of income", so as to

provide adequate opportunity to the assessee to explain the show

cause notice. Rather notice in this case has been issued in a stereotyped

manner without applying any mind which is bad in law, hence is not a

valid notice sufficient to impose penalty u/s 271(1)(c) of the Act.

attracted where the assessee has concealed the particulars of income

or furnished inaccurate particulars of such income. It is also a well-

accepted proposition that the aforesaid two limbs of section

271(1)(c) of the Act carry different meanings. Therefore, it was

imperative for the Assessing Officer to strike- off the irrelevant limb so

as to make the assessee aware as to what is the charge made against

him so that he can respond accordingly. The Hon'ble Karnataka High

5 ITA No.161/CTK/2019 Court in the case of Manjunatha Cotton & Ginning Factory, 359 ITR 565

(Kar) observed that the levy of penalty has to be clear as to the limb

under which it is being levied. As per Hon'ble High Court, where the

Assessing Officer proposed to invoke first limb being concealment, then

the notice has to be appropriately marked. The Hon'ble High Court held

that the standard proforma of notice under section 274 of the Act

without striking of the irrelevant clauses would lead to an inference of

non-application of mind by the Assessing Officer. The Hon'ble Supreme

Court in the case of Dilip N. Shroff vs. JCIT, 291 ITR 519(SC) has also

noticed that where the Assessing Officer issues notice under section

274 of the Act in the standard proforma and the inappropriate words

are not deleted, the same would postulate that the Assessing Officer

was not sure as to whether he was to proceed on the basis that the

assessee had concealed the particulars of his income or furnished

inaccurate particulars of income. According to the Hon'ble Supreme

Court, in such a situation, levy of penalty suffers from non- application

of mind. In the background of the aforesaid legal position and, having

regard to the manner in which the Assessing Officer has issued notice

under section 274 r.w.s. 271(1)(c) of the Act dated 30.06.2015 without

striking off the irrelevant words, the penalty proceedings show a non-

application of mind by the Assessing Officer and is, thus, unsustainable.

6 ITA No.161/CTK/2019 11. The facts of the present appeal are identical to the facts of the

case before the Hon'ble Supreme Court in the case of SSA's. Emerald

Meadows (supra) and, therefore, the decision of Hon'ble Supreme

Court squarely applies to the case of the assessee. Hence, respectfully

following the same, we set aside the order passed by the CIT(A) dated

22.04.2019 and cancel the penalty order dated 26.03.2018 levying

penalty of Rs.62,991/- and allow the ground of appeal of the assessee.