Loading judgment…
Facts
The Revenue appealed against the CIT(A)'s decision to delete penalties levied under Section 271(1)(c) of the Income Tax Act, 1961, for Assessment Years 2002-03 and 2003-04. The penalties were imposed on the assessee for allegedly diverting interest-bearing funds for non-business purposes, but the CIT(A) deleted them on technical grounds, which the Revenue contested.
Held
The Tribunal upheld the CIT(A)'s deletion of penalties, finding that the show cause notices issued by the Assessing Officer under Section 274 read with Section 271(1)(c) were vague. They failed to specify whether the penalty was for concealment of income or furnishing inaccurate particulars. Citing various judicial pronouncements, the Tribunal concluded that such omnibus notices vitiate penalty proceedings due to non-application of mind and violation of natural justice, rendering the penalties ab initio void.
Key Issues
Whether penalty notices issued under Section 274 read with Section 271(1)(c) are valid if they fail to specify the exact charge (concealment of income or furnishing inaccurate particulars), leading to a violation of natural justice and non-application of mind.
Sections Cited
271(1)(c), 274, 153, 254, 143(3), 153C, 292B, Article 14
AI-generated summary — verify with the full judgment below
Before: SHRI SANDEEP GOSAIN & SHRI PRABHASH SHANKAR
PER PRABHASH SHANKAR [A.M.] :- The present appeals preferred by the Revenue and Cross Objections of the assessee emanate from the order passed by the Learned Commissioner of Income-tax, Appeal, CIT(A) 49, Mumbai [hereinafter referred to as “CIT(A)”] pertaining to penalty order u/s. 271(1)(c) of the Income-tax Act, 1961 [hereinafter referred to as “Act”] dated21.12.2022for the Assessment Years [A.Y.] 2002-03 and 2003-04. Since the issues are common and interlinked, and also the fact that the appeals were heard together, they are being taken up together for adjudication vide this composite order for the sake of brevity.
The grounds of appeal are as under:- ITA 415/MUM/2025(A.Y. 2002-03)
On the facts and circumstances of the case and in law, The learned CIT(A) has erred in deleting the penalty of Rs. 89,13,326/- imposed under Section 271(1)(c) of the Income Tax Act, 1961, despite the fact that the Assessee had deliberately diverted interest-bearing funds for non- business purposes for the entire year, as observed in the assessment years under consideration.
On the facts and circumstances of the case and in law, The learned CIT(A) has failed to appreciate that the facts of the present case are materially different from those considered by the Hon’ble ITAT in the AY 2001-02, and therefore, the penalty imposed by the AO for the AY 2002- 03 is fully justified under Section 271(1)(c) of the Act.
On the facts and in the circumstances of the case, the learned CIT(A) erred in deleting the penalty under section 271(1)(c) of the Income Tax Act, 1961, merely on technical grounds, without considering the substantive merits of the case, and failed to follow the principles laid
P a g e | 3 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai down by the Hon’ble Delhi High Court in the following judgments: CIT v. S. S. Suri (2005) 279 ITR 276 CIT v. Zoom Communication Put. Ltd. (2010) 327 ITR 510, CIT v. M/s Sandeep Aggarwal (2018) 93 taxmann.com 293 & CIT v. M/s. Rajeev Kumar Agarwal (2019) 105 taxmann.com 455. 4. On the facts and in the circumstances of the case, the learned CIT(A) erred in failing to appreciate the importance of the substantive grounds for penalty, as directed by the Hon’ble Delhi High Court in the above mentioned judgments, which hold that technical lapses in penalty proceedings should not override the substantive grounds of penalty.
ITA 416/MUM/2025(A.Y. 2003-04)
On the facts and circumstances of the case and in law, The learned CIT(A) has erred in deleting the penalty of Rs. 90,00,000/- imposed under Section 271(1)(c) of the Income Tax Act, 1961, despite the fact that the Assessee had deliberately diverted interest-bearing funds for non- business purposes for the entire year, as observed in the assessment years under consideration.
On the facts and circumstances of the case and in law, The learned CIT(A) has failed to appreciate that the facts of the present case are materially different from those considered by the Hon’ble ITAT in the AY 2001-02, and therefore, the penalty imposed by the AO for the AY 2003-04 is fully justified under Section 271(1)(c) of the Act.
On the facts and in the circumstances of the case, the learned CIT(A) erred in deleting the penalty under section 271(1)(c) of the Income Tax Act, 1961, merely on technical grounds, without considering the substantive merits of the case, and failed to follow the principles laid down by the Hon’ble Delhi High Court in the following judgments: CIT v. S. S. Suri (2005) 279 ITR 276 CIT v. Zoom Communication Pvt. Ltd. (2010) 327 ITR 510, CIT v. M/s. Sandeep Aggarwal (2018) 93 taxmann.com 293 & CIT v. M/s. Rajeev Kumar Agarwal (2019) 105 taxmann.com 455. 4. On the facts and in the circumstances of the case, the learned CIT(A) erred in failing to appreciate the importance of the substantive grounds for penalty, as directed by the Hon’ble Delhi High Court in the above- mentioned judgments, which hold that technical lapses in penalty proceedings should not override the substantive grounds of penalty.
P a g e | 4 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai
It is noticed that the ld.CIT(A) has deleted the penalty orders for both the above assessment years on the observations and findings that the ITAT had restored the issue to the file of the AO for deciding afresh levy of penalty u/s 271(1)(c) in light of its observation made in the order u/s 254 of the Act. As per the directions of ITAT, a fresh order of penalty u/s 271(1)(c) should have been passed. Instead, an ‘Order giving effect to order of ITAT’ has been passed in which the original penalty was merely revised on a lesser amount. He found that the AO made factually wrong observation by stating that the ITAT had confirmed the penalty with respect to the interest on non interest bearing funds as the perusal of the order u/s 254 of the Act revealed that the ITAT had not confirmed the penalty but restored it to the file of the AO with certain observations to decide the issue afresh. The directions given by the ITAT had not been followed. Before passing the order, an opportunity of being heard should have been given to the assessee, which didn’t seem to have been given. It was thus clear that the directions of the ITAT had not been caried out before imposing the penalty. Accordingly, considering the overall facts and circumstances of the case, he held that penalty orders could not be upheld and gave a direction to the AO to delete the same for both the year on similar observations where the quantum of the P a g e | 5 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai penalty differed only on account of amount and rest of the facts remaining the same. The Revenue in the above grounds of appeal has contested the action of the ld.CIT(A).
We take up ground no.2 of the CO for adjudication first as itcites legal grounds which go into the very root of the validity of the penalty order.
C.O. No.50/MUM/2025 (A.Y. 2003-04) C.O. No.51/MUM/2025 (A.Y. 2002-03) Common grounds of appeal are as below:
The CIT erred in upholding the action of the AO without deciding the issue of passing the penalty order beyond the time limitation u/s 153 of the Act.
The CIT erred in not deciding the ground of appeal as the AO erred in levying the penalty u/s 271(1)(c) of the Act without specifiying the charge for which penalty was levied. “The appellants contend that on the facts and in the circumstances of the case and in law, the Assessing Officer erred in levying the impugned penalty without specifying the charge for which penalty under section 271(1)(c) is levied and as such, the impugned order ought to be quashed. The appellants further, contend that on the facts and in the circumstances of the case and in law, the Assessing Officer passed the impugned order dated 21.12.2022 pursuant to the order of the Tribunal dated 30.09.2016 restoring the issue to the Assessing Officer "for deciding afresh levy in penalty u/s. 271(1)(C) of the IT Act in the light of our above observations"; the original penalty proceedings initiated by order dated 27.12.2005 culminated into the order of penalty dated 25.03.2009 and there was total non-application of mind by the Assessing Officer in such original proceedings inasmuch as he issued the notice under section 274 r.w.s. 271 specifying the charge for both the limbs that is, for furnishing inaccurate particulars of income and concealment thereof, and as such, the notice suffers
P a g e | 6 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai from the virus of non-application of mind and hence, the impugned order levying penalty is bad in law and consequently, not tenable. The appellants further, contend that on the facts and in the circumstances of the case and in law, the Assessing Officer has levied penalty by order dated 25.03.2009 for both limbs namely, "furnishing inaccurate particulars of income" and "concealment of income": thus, thereby, the impugned order, being continuation of proceedings initiated during the course of assessment and culminated into the order of penalty dated 25.03.2009, is bad in law and hence, ought to be quashed.”
In ground no.2 of the CO for both the years, the assessee has contended that the ld.CIT(A) did not adjudicate the ground wherein it was pointed out that the penalty order was liable to be quashed as the AO while issuing show cause notice u/s 274 r.w. section 271(1)(c) of the Act did not strike off one of the limbs therein which implied that he did not apply his mind properly and went on to pass illegal penalty order which is not in consonance with provisions of law and the legal position as laid down by the courts of law in plethora of cases.
In the course of hearing, the ld.AR has placed on record show cause notices for both the years under consideration and we find that the contention of the ld.AR is factually correct. The ld.DR representing the department also did not controvert this fact emanating from the said show cause notices which clearly show that the AO did not strike any one of the limbs which is common for default of ‘furnishing of P a g e | 7 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai inaccurate particulars’ as well as ‘concealment of income’ and the AO needs to strike off of one of them which does not apply to the facts of the case. However, by not striking off one of the above limbs, the AO has failed to point out the actual default committed by the assessee in this regard. Therefore, penalty orders for both the assessment years under consideration are liable to be considered as void ab initio. It can be seen from the above that there is no mention at all about the charge of either furnishing of inaccurate particulars of income or concealment of the particulars of income, in the notice dated 30.03.2005issued by the AO u/s. 274 read with section 271 of the Act for initiating the penalty proceedings u/s. 271(1)(c) of the Act. The relevant details are left blank and the clause which is not relevant is not struck off. Thus, we find that in the aforesaid notice, the AO had not specified any of the relevant charges either furnishing of inaccurate particulars of income or concealment of the particulars of income-being brought against the appellant.
It is pertinent to note that the entire legal controversy about identification of the relevant limb of penalty in the notice u/s. 274 read with section 271 of the Act started with the judgment of hon'ble Karnataka High Court in the case of Manjunatha Cotton and Ginning Factory (2013) 359 ITR 0565 (Kar.), wherein it was held
P a g e | 8 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai that the notice u/s. 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.Subsequent to the above judgment, in the case of CIT v. SSA's Emerald Meadows in 73 taxmann.com 241 (Kar.), a Division Bench of hon'ble Karnataka High Court, taking note of the Manjunatha's case, dismissed the appeal filed by the Revenue holding that no substantial question of law arose for determination by the Court.
1 Later, hon’ble Full bench of hon'ble Bombay High Court in the case of Mohd. Farhan A. Shaikh(2021) 125 taxmann.com 253 (Bom)considered similar issue at length. In this case, the Larger Bench of the Court was referred an issue mere failure to tick mark the applicable grounds in the notice issued under Section 271 of the Income Tax Act, 1961 (IT Act) vitiate the entire penalty proceedings.To this, it was held that a penal provision even with civil consequences, must be construed strictly and ambiguity, if any, must be resolved in the affected assessee's favour. The matter referred to the hon'ble Full Bench as noted in the said order is as below:
“5. While placing the matter before the Hon'ble the Chief Justice for issue- resolution by a larger Bench, the learned Division Bench has framed this question for reference:
P a g e | 9 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai "[In] the assessment order or the order made under sections 143(3) and 153C of the IT Act, [when] the Assessing Officer has clearly recorded satisfaction for the imposition of penalty on one or the other, or both grounds mentioned in Section 271(1)(c), (would) a mere defect in the notice of not stinking out the relevant words [...] vitiate the penalty proceedings?
Besides, the Division Bench has also desired the larger Bench to consider two more aspects: (a) "the impact of non-discussion on the aspect of 'prejudice' in the first set of decisions)": (b) and "the effect of the decision of the Hon'ble Supreme Court in case of Dilip N. Shroff v. Joint Commissioner of Income-Tax [2007] 291 ITR 519 (SC) on the issue of non-application of mind where the relevant portions of the printed notices are not struck off . 7.2 While making observation on the judgment of Dilip N. Shroff, it was observed by the hon'ble Court that primary burden of proof is on the Revenue. The AO must satisfy himself that there is primary evidence to establish that the assessee had concealed the amount or furnished inaccurate particulars and this onus is to be discharged by the Revenue. While considering whether the assessee has discharged his burden, he should not begin with the presumption that he is guilty. Once the Revenue discharges its primary burden of proof, the secondary burden of proof, would shift on to the assessee. It is because the proceeding under section 271(1)(c) is of penal nature in the sense that its consequences are intended to be an effective deterrent which will put a stop to practices which the Parliament considers to be against the public interest. The hon'ble Court also relied on the judgments of CIT v. Samson Pericherry, ITA/1154/2014 (Bom); PCIT v. Goa Dorado, TXA/18/2019 (Bom) and PCIT v. New Era Sova Mine TXA/70/2019
P a g e | 10 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai (Bom), wherein it was observed that "No notice could be issued under section 274, read with section 271 of the Act without indicating which particular limb of Section 271(1)(c) was invoked for initiating the penalty proceedings". Finally, the larger Bench of hon'ble high Court decided the matter with following findings:
“Question No. 1: If the assessment order clearly records satisfaction for imposing penalty on one or the other, or both grounds mentioned in Section 271(1)(c), does a mere defect in the notice-not striking off the irrelevant matter-vitiate the penalty proceedings?
It does. The primary burden lies on the Revenue. In the assessment proceedings, it forms an opinion, prima facie or otherwise, to launch penalty proceedings against the assessee. But that translates into action only through the statutory notice under section 271(1)(c), read with section 274 of IT Act. True, the assessment proceedings form the basis for the penalty proceedings, but they are not composite proceedings to draw strength from each other. Nor can each cure the other's defect. A penalty proceeding is a corollary; nevertheless, it must stand on its own. These proceedings culminate under a different statutory scheme that remains distinct from the assessment proceedings. Therefore, the assessee must be informed of the grounds of the penalty proceedings only through statutory notice. An omnibus notice suffers from the vice of vagueness.
More particularly, a penal provision, even with civil consequences, must be construed strictly. And ambiguity, if any, must be resolved in the affected assessee's favour.
Therefore, we answer the first question to the effect that Goa Dourado Promotions and other cases have adopted an approach more in consonance with the statutory scheme. That means we must hold that Kaushalya does not lay down the correct proposition of law. Question No. 2: Has Kaushalya failed to discuss the aspect of 'prejudice'?
Indeed, Kaushalya did discuss the aspect of prejudice. As we have already noted, Kaushalya noted that the assessment orders already contained the reasons why penalty should be initiated. So, the assessee, stresses Kaushalya, "fully knew in detail the exact charge of the Revenue against him". For Kaushalya, the statutory notice suffered from neither non-application of mind nor any prejudice. According to it, "the so-called ambiguous wording in the notice [has not) impaired or prejudiced the right of the assessee to a P a g e | 11 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai reasonable opportunity of being heard". It went onto observe that for sustaining the plea of natural justice on the ground of absence of opportunity, it has to be established that prejudice is caused to the concerned person by the procedure followed". Kaushalya closes the discussion by observing that the notice issuing "is an administrative device for informing the assessee about the proposal to levy penalty in order to enable him to explain as to why it should not be done". 185 No doubt, there can exist a case where vagueness and ambiguity in the notice can demonstrate non-application of mind by the authority and/or ultimate prejudice to the right of opportunity of hearing contemplated under section 274. So asserts Kaushalya. In fact, for one assessment year, it set aside the penalty proceedings on the grounds of non- application of mind and prejudice.
That said, regarding the other assessment year, it reasons that the assessment order, containing the reasons or justification, avoids prejudice to the assessee. That is where, we reckon, the reasoning suffers. Kaushalya's insistence that the previous proceedings supply justification and cure the defect in penalty proceedings has not met our acceptance. Question No. 3: What is the effect of the Supreme Court's decision in Dilip N. Shroff on the issue of non-application of mind when the irrelevant portions of the printed notices are not struck off? 187 In Dilip N. Shroff, for the Supreme Court, it is of "some significance that in the standard Pro-forma used by the assessing officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not been done". Then, Dilip N. Shroff, on facts, has felt that the assessing officer himself was not sure whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars.
We may, in this context, respectfully observe that a contravention of a mandatory condition or requirement for a communication to be valid communication is fatal, with no further proof. That said, even if the notice contains no caveat that the inapplicable portion be deleted, it is in the interest of fairness and justice that the notice must be precise. It should give no room for ambiguity. Therefore, Dilip N. Shroff disapproves of the routine, ritualistic practice of issuing omnibus show-cause notices. That practice certainly betrays non application of mind. And, therefore, the infraction of a mandatory procedure leading to penal consequences assumes or implies prejudice.
In Sudhir Kumar Singh, the Supreme Court has encapsulated the principles of prejudice. One of the principles is that "where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, "except in the case of a mandatory
P a g e | 12 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai provision of law which is conceived not only in Individual interest but also in the public interest".
Here, section 271(1)(c) is one such provision. With calamitous, albeit commercial, consequences, the provision is mandatory and brooks no trifling with or dilution. For a further precedential prop, we may refer to Rajesh Kumar v. CIT ((2007) 2 SCC 181], in which the Apex Court has quoted with approval its earlier judgment in State of Orissa v. Dr. Binapani Dei [AIR 1967 SC 1269]. According to it, when by reason of action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice must be followed. In such an event, although no express provision is laid down on this behalf, ITA No962/Mum/2024 Triumph Securities Ltd compliance with principles of natural justice would be implicit. If a statue contravenes the principles of natural justice, it may also be held ultra vires Article 14 of the Constitution.
As a result, we hold that Dilip N. Shroff treats omnibus show-cause notices as betraying non-application of mind and disapproves of the practice, to be particular, of issuing notices in printed form without deleting or striking off the inapplicable parts of that generic notice. (emphasis added) “
3 Further, in another judgment, the hon'ble Bombay High (2021) 124 taxmann.com 248 (Bom) also took similar view that where inapplicable portions were not struck off in the penalty notice, the penalty was vitiated. The SLP of the Department against this judgment has been dismissed by the Hon'ble Apex Court in Pr.CIT Vs. Golden Peace Hotels and Resorts (P.) Ltd. (supra).We find that this very issue has been considered by the hon'ble Delhi ITAT as well in the case of ACIL Ltd. Vs ACIT, [2022] 137 taxmann.com 339 (Delhi -Trib.), wherein it was held as follows:
"
We have gone through the record in the light of the submissions made on either side. From the orders under challenge, it is very clear that the main grievance of the assessee is that the levy of penalty on the basis of notice which P a g e | 13 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai is vague and illegal cannot be sustained. Such a question of the legality or otherwise of assumption of juri iction by the learned Assessing Officer under a notice issued under section 271(1)(c) of the Act without striking off of the relevant limb under which the penalty is proposed is no longer res integra, and the Hon'ble juri ictional High Court in the case of Pr. CIT v. Sahara India Life Insurance Co. Ltd. [2019] 108 taxmann.com 597/2021) 432 (TR 84 (Delhi), while noticing the addition of the Hon'ble Karnataka High Court in CIT v Manjunatha Cotton & Ginning Factory (2013) 35 taxmann.com 250/218 Taxman 423/359 ITR 565 dealt with this issue.
In the case of Manjunatha Cotton & Ginning Factory (supra). Vide paragraph 60, the Hon'ble Karnataka High Court has held as follows:- "60, Clause (c) deals with two specific offences, that is to say, concealing particulars 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 ITA No962/Mum/2024 Triumph Securities Ltd 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 low. It is needless to point out 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 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 penally to impose penalty on the grounds other than what 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 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." In CIT v. SSA's Emerald Meadows (2016) 73 taxmann.com 241 the Hon'ble Karnataka High Court Considered the question of law as to,- "Whether, omission of 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
P a g e | 14 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai even when it has been proved beyond reasonable doubt that the assessee had concealed income in the facts and circumstances of the case?" And the Hon'ble High Court ruled answered the same in favour of the assessee observing that: "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(1)(c) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee, has relied on the decision of the Division Bench of this Court rendered in the case of Commissioner of Income Tax V. Manjunatha Cotton And Ginning Factory (2013) 359 ITR 565. 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." The Special Leave Petition filed by the Revenue challenging the aforesaid judgement of the High Court was dismissed by the Hon'ble Supreme Court holding: "We do not find any merit in this petition. The special leave petition is, accordingly, dismissed."
In the case of Sahara India Life Insurance Co. Ltd. case (supra), Hon'ble Delhi High Court, upheld the view taken by the Tribunal basing on the decision of the Hon'ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory (supra) and SSA's Emerald Meadows (supra) wherein it was held that the notice issued by the learned Assessing Officer would be bad in law if it did not specify which limb of section 271(1)(c) of the Act the penalty proceedings had been initiated under i.e., whether for concealment of particulars of income or for furnishing of inaccurate particulars thereof. Relevant observations of the Hon'ble High Court read that,- "
The Respondent had challenged the upholding of the penalty imposed under section 271(1)(c) of the Act, which was accepted by the ITAT. It followed the decision of Karnataka High Court in CIT v. Manjunatha Cotton & Ginning Factory 359 ITR 565 (Kar.) and observed that the notice issued by the AO would be bad in law if it did not specify which limb of section 271(1)(c) the penalty proceedings had been initiated under l.e. whether for concealment of particulars of income or for furnishing of inaccurate particulars of income. The Karnataka High Court had followed the above judgement in the subsequent order in Commissioner of Income Tax v. SSA's Emerald Meadows (2016) 73 taxmann.com 241 (Kar), the appeal against which was dismissed by P a g e | 15 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai the Supreme Court of India in SLP No. 11485 of 2016 by order dated 5th August, 2016. 22. On this issue again this court is unable to find any error having been committed by the ITAT."
It is, therefore, clear that for the AO to assume juri iction u/s 271(1)(c), proper notice is necessary and the defect in notice u/s 274 of the Act vitiates the assumption of juri iction by the learned Assessing Officer to levy any penalty. In this case, facts stated supra clearly establish that the notice issued under section 274 read with 271 of the Act is defective and, therefore, we find it difficult to hold that the learned AO rightly assumed juri iction to passed the order levying the penalty. As a consequence of our findings above, we direct the assessing officer to delete the penalty in question."
4 This issue has further been considered by the hon'ble juri ictional High Court in another decision in the case of [2022] 135 taxmann.com 244 (Bombay) Ganga Iron & Steel Trading Co. Nos. 616 to 618/Kol/2013 and it has been further held that the provisions of section 292B of the Act cannot cure the basic defect in assumption of juri iction and could only cure the mistake, defect or omission in the return of income, assessment, notice or the proceedings. The Tribunal further held that show cause notice and the reasons
P a g e | 16 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai mentioned in the show cause notice were part of process of natural justice and the defect in such notice could not be overlooked.
6 The hon’ble Supreme Court in the case of T. Ashok Pai v. CIT (2007) 292 ITR 11/161 Taxman 340 has held that concealment of income and furnishing inaccurate particulars of income carry different connotations. The Gujarat High Court in the case of CIT v. Manu Engg. [1980] 122 ITR 306 and the Delhi High Court in the case of CIT v. Virgo Marketing (P.) Ltd. [2008] 171 Taxman 156 have held that levy of penalty has to be clear as to the limb for which it is levied and the position being unclear penalty is not sustainable. Therefore, when the AO proposes to invoke the first limb being concealment, then the notice has to be appropriately marked. Similar is the case for furnishing inaccurate particulars of income. In the case of CIT v. Whiteford India Ltd. (2013138 taxmann.com 15/219 Taxman 98 (Gui.) (Mag.). it was held that, "In absence of clear finding of Assessing Officer whether assessee is guilty of concealment of income or furnishing incorrect particulars of income, penally levied under section 271(1)(c) cannot be sustained".
In the light of the above discussion, we find sufficient merits in the legal issue raised in CO. According to us, the assessee should have P a g e | 17 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai been informed with certainty and accurately of the exact nature of the fault alleged against it, which is absent in this case. Therefore, the show cause notices issued u/s 274 of the Act in both the assessment years proposing penalty are found to be vague and do not satisfy the requirements of law and therefore, consequent levy of penalty is not sustainable and is held to be ab initio void.
In the result, both the Cross appeals no.50/51 are allowed. Consequently, the appeals of the Revenue in ITA No.415/416 stand dismissed.
Order pronounced in the open court on 04.08.2025. SANDEEP GOSAIN PRABHASH SHANKAR (न्यातयक सदस्य /JUDICIAL MEMBER) (लेखाकार सदस्य/ACCOUNTANT MEMBER)
Place: म ुंबई/Mumbai ददनाुंक /Date 04.08.2025 Lubhna Shaikh / Steno
आदेश की प्रतितलतप अग्रेतिि/Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant प्रत्यर्थी / The Respondent. 2. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविवनवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai
P a g e | 18 ITA No. 415, 416/Mum/2025 CO No. 50, 51/Mum/2025 A.Y. 2002-03, 2003-04 Panther Investrade Limited, Mumbai 5. गार्ड फाईल / Guard file.
सत्यावपि प्रवि //// आदेशानुसार/ BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt.