RAHUL CABLES PRIVATE LIMITED,PUNE vs. DEPUTY COMMISSIONER OF INCOME TAX, PUNE

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ITA 985/PUN/2017Status: DisposedITAT Pune30 October 2019AY 2009-105 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the Assessing Officer (AO) levied penalty for both limbs (concealment and inaccurate particulars) without issuing a proper show cause notice for both, violating principles of natural justice. The AO's satisfaction recorded during assessment was for 'concealment of income', but the penalty order covered both limbs.

What were the facts?

The assessee company was subjected to reassessment proceedings, leading to additions on account of hawala purchases. Subsequently, penalties were levied under Section 271(1)(c) of the Income Tax Act for both concealment of income and furnishing inaccurate particulars. The CIT(A) upheld these penalties.

What were the issues?

The key issue was whether the penalty levied under Section 271(1)(c) was valid when the AO initiated penalty proceedings for one limb but levied it for both, without a proper show cause notice.

Which sections of the Income-tax Act were involved?

Section 147,Section 143(3),Section 271(1)(c),Section 274

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE

Before: SHRI ANIL CHATURVEDI, AM & SHRI S.S. VISWANETHRA RAVI, JM

For Appellant: Shri Shanthu Paranjape
For Respondent: Shri D.Ghosh and Shri Abhijit Haldar
Hearing: 16.10.2019Pronounced: 30.10.2019

आदेश / ORDER PER ANIL CHATURVEDI, AM :

These appeals filed by the assessee are emanating out of the 1. separate orders of Commissioner of Income Tax (A) – 8, Pune dt.12.01.2017 for the assessment years 2009-10 and 2010-11.

2.

Before us, at the outset, both the parties submitted that though the appeals are for two different assessment years but the facts and issues involved in both the appeals are identical except for the assessment year and the amounts involved and therefore the submissions made by them while arguing one appeal would be equally applicable to the other appeal also and thus, both the appeals can be heard together. In view of the aforesaid submissions of both the parties, we, for the sake of convenience,

proceed to dispose of both the appeals by a consolidated order but

however, proceed with narrating the facts for assessment year 2009-10.

3.

The relevant facts as culled out from the material on record are as

under :-

Assessee is a private limited company stated to be engaged in the

business of trading of wires and cables. Assessee filed its return of income

for A.Y. 2009-10 on 31.10.2009 declaring total income at

Rs.2,51,15,300/-. In this case assessment was re-opened u/s 147 of the

Act. Subsequently, the case was taken up for scrutiny and thereafter

assessment was framed u/s 143(3) r.w.s. 147 of the Act vide order dated

06.06.2014 and the total income was determined at Rs.3,20,71,009/-

inter-alia by making addition of Rs.69,55,709/- on account of hawala

purchases. On the aforesaid addition of hawala purchases, AO vide order

dt.25.03.2015 levied penalty of Rs.23,64,244/- u/s 271(1)(c) of the Act.

For A.Y. 2010-11 the details of income offered by the assessee,

addition made and penalty levied are as under :

A.Y. Returned income Addition Total income Penalty levied assessed u/s 143(3)

2010-11 Rs.2,14,14,700/- Rs.42,09,223/- on Rs.2,56,23,933/- Rs.14,30,714/- account of hawala purchases

Aggrieved by the orders of AO levying penalty u/s 271(1)(c) of the

Act, assessee carried the matter before Ld.CIT(A), who vide separate orders

dt.12.01.2017 (in appeal No.PN/CIT(A)-8/DCIT, Circle-5, Pune/146 &

147/2016-17) dismissed the appeals of the assessee. Aggrieved by the

orders of Ld.CIT(A), assessee is now in appeal before us and has raised the

following grounds :

“1 The learned Dy. Commissioner of Income Circle-S, Pune has erred in levying penalty of Rs. 23,64,240/- u/s 271(1)(c) of the Income Tax Act, 1961even though we have disclosed all the related facts, submitted all the related documents and details with explanations and the Commissioner of Income Tax (Appeals)- 8, Pune has erred in confirming the same. 2. The learned Dy. Commissioner of Income Circle-S, Pune and the Commissioner of Income Tax (Appeals)- 8, Pune have not followed the principal of natural justice, hence their respective orders are bad in law.

4.

Similar grounds have been raised in ITA No.986/PUN/2017 for A.Y.

2010-11.

4.1. Both the grounds being inter-connected are considered together.

5.

Before us, Ld.A.R submitted that while passing the assessment

order, AO with respect to addition on account of hawala purchases has

recorded that assessee had “concealed the particulars of income” to the

extent of Rs.69,55,709/- but while passing the penalty order u/s 271(1)(c)

of the Act on 25.03.2015 AO had levied penalty for both the limbs i.e., “for

furnishing inaccurate particulars of income” as well as for “concealment of

income”. He therefore relying on the decision of Hon’ble Bombay High

Court in the case of CIT Vs. Samson Perinchery reported in (2017) 392

ITR 4 (Bom) submitted that in the absence of proper show cause notice to

assessee, penalty u/s 271(1)(c) cannot be levied and therefore urged that

penalty levied by AO be deleted. Ld.D.R. on the other hand, supported the

order of lower authorities.

6.

We have heard the rival submissions and perused the material on

record. The issue in the present case is with respect to levy of penalty u/s

271(1)(c) of the Act. In the present case in A.Y. 2009-10, penalty of

Rs.23,64,244/- u/s 271(1)(c) of the Act has been levied on amount of

Rs.69,55,709/- being the addition on account of hawala purchases. In

A.Y. 2010-11, penalty of Rs.14,30,714/- u/s 271(1)(c) of the Act has been

levied on amount of Rs.42,09,223/- being the addition on account of

hawala purchases. The perusal of assessment orders passed u/s 143(3)

r.w.s. 147 of the Act reveals that in the assessment orders AO had

recorded satisfaction for “concealment of income” and thereafter, in the

penalty orders passed u/s 271(1)(c) of the Act, AO had levied penalty for

“furnishing of inaccurate particulars of income” as well as for

“concealment of income” i.e., for both the limbs. It is a settled law that

while levying penalty, the AO has to record satisfaction and thereafter

come to a finding in respect of one of the limbs, which is specified under

section 271(1)(c) of the Act. The first step is to record satisfaction while

completing the assessment as to whether the assessee had furnished

inaccurate particulars of income or concealed his income. Thereafter,

notice u/s 274 read with Section 271(1)(c) of the Act is to be issued to the

assessee. The Assessing Officer thereafter has to levy penalty under

Section 271(1)(c) of the Act for non-satisfaction of either of the limbs.

While completing the assessment, the Assessing Officer has to come to a

finding as to whether the assessee has concealed its income or furnished

inaccurate particulars of income. The Hon’ble Bombay High Court in CIT

Vs. Shri Samson Perinchery (supra) held that where initiation of penalty

is one limb and the levy of penalty is on other limb, then in the absence of

proper show cause notice to the assessee, there is no merit in levy of

penalty.

7.

Considering the facts of the present case in the light of the decision

of Hon’ble Bombay High Court in the case of Samson Perinchery (supra),

we are of the view that in the present cases, the basic condition for levy of

penalty has not been fulfilled and that the penalty orders suffers from

non-exercising of jurisdiction power and therefore penalty orders cannot be upheld. We accordingly set aside the penalty orders passed by AO. Thus, the grounds of assessee are allowed.

8.

In the result, both the appeals of the assessee are allowed.

Order pronounced on 30th day of October, 2019.

Sd/- Sd/- (S.S. VISWANETHRA RAVI) (ANIL CHATURVEDI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER

पुणे Pune; �दनांक Dated : 30th October, 2019. Yamini

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. CIT(A)-11, Pune. 4. Pr. CIT(Central), Pune. 5 �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “ए” / DR, ITAT, “A” Pune; गाड� फाईल / Guard file. 6.

आदेशानुसार/ BY ORDER

// True Copy //

व�र�ठ �नजी स�चव / Sr. Private Secretary आयकर अपील�य अ�धकरण ,पुणे / ITAT, Pune.

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