DCIT 9(3)(2), MUMBAI vs. GENTECH LABORATORIES LTD, MUMBAI

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ITA 1565/MUM/2019Status: DisposedITAT Mumbai19 May 2022AY 2009-104 pages

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

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the deletion of the penalty by the CIT(A). It relied on the jurisdictional High Court's Full Bench decision which stated that a defective penalty notice, lacking clarity on the grounds for penalty, can vitiate the penalty proceedings.

What were the facts?

The assessee's assessment was reopened, and an addition was made for bogus purchases. The Assessing Officer (AO) initiated penalty proceedings under Section 271(1)(c) of the Income Tax Act. The assessee contended that the penalty notice lacked clarity regarding the specific offense (concealment or furnishing inaccurate particulars).

What were the issues?

Whether a penalty under Section 271(1)(c) is valid if the notice issued to the assessee is ambiguous regarding the specific grounds for imposing the penalty.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 274

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, ‘G‘ BENCH

For Respondent: Shri Avinash Tiwari
Hearing: 09/05/2022Pronounced: 19/05/2022

आदेश / O R D E R PER M. BALAGANESH (A.M): This appeal in A.Y.2009-10 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-16, Mumbai, Mumbai in appeal No.CIT(A)-16/ACIT-9(3)(2)/IT-04/2017-18 dated 24/12/2018 (ld. CIT(A) in short) in the matter of imposition of penalty u/s.271(1)(c) of the Act (hereinafter referred to as ‘Act’).

2.

The only issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in deleting the levy of penalty u/s.271(1)(c) of the Act in the facts and circumstances of the instant case.

M/s. Gentech Laboratories Ltd.,

3.

We have heard rival submissions and perused the materials available on record. We find that return of income for A.Y.2009-10 was electronically filed by the assessee company on 26/09/2010 declaring total income of Rs.7,60,76,388/- consisting of long term capital gains for transfer of development rights. The assessee is engaged in the business of marketing of pharmaceutical healthcare products. Originally the assessment was completed u/s.143(3) of the Act on 24/05/2011 determining total income of the assessee at Rs.7,66,64,200/-. Later, the assessment was sought to be reopened and re-assessment was completed u/s.143(3) r.w.s. 147 of the Act on 22/09/214 determining total income of the assessee at Rs.7,68,67,940/-. In the said re- assessment, addition has been made on account of bogus purchases to the tune of Rs.2,03,736/-. Penalty proceedings u/s.271(1)(c) of the Act were initiated and penalty was levied by the ld. AO on the said addition made on account of bogus purchases. The assessee also raised the ground before the ld.CIT(A) that in the notice issued for initiating penalty proceedings issued by the ld. AO, there was no clarity with regard to specific mistake committed by the assessee as to whether the assessee has concealed the particulars of income or furnishing inaccurate particulars of income. The ld. CIT(A) had granted relief to the assessee on the said legal ground by placing reliance on addition of various High Courts. We find that the very same issue is no longer res integra in view of the Full Bench decision of the Hon’ble Jurisdictional High Court in the case of Mohd. Farhan A Shaikh vs. DCIT reported in 434 ITR 1 (Bom). The relevant head notes of the said judgement is reproduced below:- “Section 271(1)(c), read with section 274 of the Income-tax Act, 1961 - Penalty - For concealment of income (Recording of satisfaction) - Whether where assessment order clearly records satisfaction for imposing penalty on one or other, or both grounds mentioned in section 271(1)(c), a mere defect in notice-not

1.

M/s. Gentech Laboratories Ltd., striking off irrelevant matter would vitiate penalty proceedings - Held, yes - Whether since penalty proceedings culminate under a different statutory scheme that remains distinct from assessment proceedings, therefore, assessee must be informed of grounds of penalty proceedings only through statutory notice - Held, yes - Whether even if notice contains no caveat that inapplicable portion be deleted, it is in interest of fairness and justice that notice must be precise, it should give no room for ambiguity - Held, yes [Paras 181 and 188][In favour of assessee]”

3.1. In view of the same, we do not find any infirmity in ld. CIT(A) deleting the levy of penalty. Accordingly, the appeal of the Revenue is dismissed.

4.

In the result, appeal of the Revenue is dismissed.

Order pronounced on 19/05/2022 by way of proper mentioning in the notice board.

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