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Income Tax Appellate Tribunal, DELHI BENCH: ‘C’ NEW DELHI
Before: MS SUCHITRA KAMBLE & SH. PRASHANT MAHARISHI
1 ITA No. 2915/Del/2018
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘C’ NEW DELHI
BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEMBER AND SH. PRASHANT MAHARISHI, ACCOUNTANT MEMBER
I.T.A. No. 2915/DEL/2018 (A.Y 2004-05)
(THROUGH VIDEO CONFERENCING)
Gahoi Buildwell Pvt. Ltd. Vs ACIT V35, Infratech Ltd. A-20, Naraina Central Circle-32, Industrial Area, Phase-1, Naraina, New Delhi New Delhi-110028 AABCG9474A (APPELLANT) (RESPONDENT)
Appellant by Sh. Sanjay Kumar, CA Respondent by Sh. Vivek Vardhan, Sr. DR
Date of Hearing 04.10.2021 Date of Pronouncement 11.10.2021
ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against the order dated 26/02/2108 passed by CIT (A)-30, New Delhi for assessment year 2004-05.
The grounds of appeal are as under: “GROUNDS OF APPEAL in the case of Gahoi Buildwell Pvt. Ltd. (now known as V3S Infratech Ltd.), A-20, Naraina Indl. Area, Phase-I, Naraina, New Delhi-110028 hereinafter referred to as “appellant”, against the order dated 26.02.2018 passed by the Commissioner of Income-tax (Appeals)-30, New Delhi hereinafter referred to as “CIT(A)”, against the Penalty order U/s 271(l)(c) of the Income-tax Act, 1961, hereinafter referred to as “Act” passed by the A.C.I.T., Central Circle-32,
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New Delhi for the Assessment year 2004-05. 1. BECAUSE the learned CIT(A) has erred in law and on facts in upholding the levy of penalty despite the fact that Assessing Officer has not recorded satisfaction as to whether the penalty is initiated for concealment of income or for furnishing inaccurate particulars of income. 2. BECAUSE the learned CIT(A) has erred in law and on facts in sustaining the penalty order particularly when the notice issued under section 274 of the Act did not specify the charge for which penalty was to be imposed. 3. BECAUSE the learned CIT(A) has erred in law and on facts in confirming the penalty despite the fact that addition made by the Assessing Officer is not sustainable in the absence of any incriminating material found during the course of search in assessment framed under section 153A of the Act. 4. BECAUSE the learned CIT(A) has erred in law and on facts in sustaining the imposition of penalty of Rs. 7,17,500^- on account of addition of Rs. 20 lakh under section 68, when the onus which lied upon the assessee stood fully discharged, particularly in penalty proceedings. 5. BECAUSE the learned CIT(A) has erred in law and on facts in sustaining the imposition of penalty for concealing the income as well as for furnishing inaccurate particulars of income. 6. BECAUSE the order appealed against is contrary to the facts, law and principles of natural justice.”
Return of income was filed on 16/2/2010 declaring income at Rs. 29,041/-. Subsequently, income was assessed at Rs.4,31,76,291/- u/s 153A/143(3) of the Income Tax Act vide order dated 31/12/2010. On the basis of fresh information received from ACIT, Central Circle, 19, New Delhi in March, 2011, the Assessing Officer observed that the assessee has received accommodation entries of Rs. 20,00,000/- from the Federal Bank Account M/s
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Chander Prabhu Financial Services which is a shell company floated/controlled by Shri S. K. Gupta, during the Financial Year 2003-04 relevant to the Assessment Year 2004-05. Therefore, to reassess the income which escaped assessment within the meaning of Section 147 of the Act, notice u/s 148 of the Act was issued on 30/3/2011. In response to the said notice, the assessee filed its return of income for the Assessment Year 2004-05 on 2/5/2011 declaring total income of Rs. 29,041/-. The assessment in this case was completed u/s 143(3)/153A/147 of the Act on 29/12/2011 at a total income of Rs.4,51,76,290/-. Penalty proceedings in provisions of Section 271(1)(c) of the Act were initiated. Notice u/s 274 Section 271(1)(c) of the Income Tax Act, 1961 was issued on 29/12/2011. Aggrieved with the additions amounting to Rs. 20,00,000/- on account of deem/undisclosed income u/s 68 of the Act, the assessee filed appeal before the CIT(A). The CIT(A) vide order dated 6/1/2015 confirmed the additions made by the Assessing Officer and dismissed the appeal of the assessee. Show cause notice dated 28/11/2016 was issued to the assessee u/s 271(1)(c) of the Act. Vide order dated 31/3/2016, the Assessing Officer imposed penalty of Rs. 7,17,500/- u/s 271(1)(c) of the Act.
Being aggrieved by the penalty order, the assessee filed appeal before the CIT(A). The CIT (A) dismissed the appeal of the assessee.
The Ld. AR submitted that the notice dated 29/12/2011 has not given a specific charge for penalty. The Ld. AR submitted that the CIT(A) erred in confirming the penalty u/s 271(1)(c) of the Act as under which limb of Section 271(1)(c), the penalty is levied was not mentioned in the notice issued under Section 271(1)(c) read with Section 274 of the Act. The Ld. AR submitted that whether the penalty is for concealment of income or furnishing of inaccurate particulars of income was not evident from the notice nor from the penalty order as well. The Ld. AR further submitted that the penalty provision being quasi judicial, unless there is specific charge there cannot be levy of penalty.
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Therefore, the order levying penalty is wrong and bad in law. The Ld. AR relied upon the decision of the Hon’ble Supreme Court in case of CIT vs. SSA’s Emerald Meadows (2016) 73 Taxman.com 248 (SC) and CIT v. Manjunatha Cotton & Ginning Factory (2013) 359 ITR 565 (Kar). The Ld AR further submitted that the Hon’ble Delhi High Court in case of Pr. CIT Vs. M/s. Sahara India Life Insurance Company Ltd. (ITA No.475/2019 vide order dated 02.08.2019) held that notice issued by the Assessing Officer would be bad in law if it did not specify which limb of Section 271(1)(c) of the penalty proceedings had been initiated.
The Ld. DR submitted that the penalty order is very clear that the penalty is imposed on concealment of income and, therefore, merely not mentioning the specific limb of Section 271(1)(c) will not make the penalty order bad in law. The Ld. DR relied upon the Assessment Order, Penalty order and the order of the CIT(A).
We have heard both the parties and perused all the relevant materials available on record. First of all, in the notice issued u/s 274 r.w.s 271(1)(c) of the Income Tax Act, 1961, there was no specific charges as relates to concealment of income or furnishing of inaccurate particulars of income. From the notice dated 29/12/2011 produced by the Ld. AR during the hearing, it can be seen that the Assessing Officer was not sure under which limb of provisions of Section 271 of the Income Tax Act, 1961, the assessee is liable for penalty. Besides that the Assessment Order also did not specify the charge as to whether there is concealment of income or furnishing of inaccurate particulars of income in assessee’s case. There is no particular limb mentioned in the notice issued under Section 271(1)(c) r.w.s. 274 of the Act. This issue is squarely covered by the decision of the Hon’ble Supreme Court in case of M/s SSA’ Emerald Meadow. The extract of the decision of the Hon’ble Karnataka High Court in M/s SSA’ Emerald Meadows are as under which was confirmed by the Hon’ble Apex Court:
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"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(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 ITA No. 4913/Del/2015 decision of the Division Bench of this Court rendered in the case of COMMISSIONER OF 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."
Thus, Additional Ground No. (ii) of the assessee's appeal is allowed. Since the inception of the notice issued u/s 271(1)(c) has become null and void, there is no need to comment on merit of the case. The Penalty u/s 271(1)(c) of the Act is quashed.”
Since in the instant case also the inappropriate words in the penalty notice has not been struck off and the notice does not specify as to under which limb of the provisions, the penalty u/s 271(1)(c) has been initiated, therefore, we are of the considered opinion that the penalty levied u/s 271(1)(c) is not sustainable and has to be deleted. Although the Ld. DR submitted that mere non-striking off of the inappropriate words will not invalidate the penalty proceedings, however, the decision of the Hon’ble Karnataka High Court in the case of SSA’S Emerald Meadows (supra) where the SLP filed by the Revenue has been dismissed is directly on the issue contested herein by the Assessee. Further, when the notice is not mentioning the concealment or the furnishing of inaccurate particulars, the ratio laid down by the Hon’ble High Court in case of M/s. Sahara India Life Insurance Company Ltd. (supra) will be applicable in the present case. The Hon’ble Delhi High Court 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 ITAT. It
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followed the decision of the 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 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 in the subsequent order in Commissioner of Income Tax v. SSA’s Emerald Meadows (2016) 73 Taxman.com 241(Kar), the appeal against which was dismissed by the Supreme Court of India in SLP No. 11485 of 2016 by order dated 5th August, 2016.
On this issue again this Court is unable to find any error having been committed by the ITAT. No substantial question of law arises.”
Thus, notice under Section 271(1)(c) r.w.s. 274 of the Act itself is bad in law. We, therefore, set-aside the order of the CIT(A) and direct the Assessing Officer to cancel the penalty so levied.
In result, the appeal of the assessee is allowed. Order pronounced in the Open Court on this 11th Day of October, 2021 Sd/- Sd/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 11/10/2021 R. Naheed * Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
ASSISTANT REGISTRAR ITAT NEW DELHI
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