M/S. CHEMSTAR ORGANICS (INDIA) LTD.,,MUMBAI vs. THE DY.CIT, CENTRAL CIRCLE-1(1),, BARODA

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI M. BALAGANESH, AM AND SHRI AMARJIT SINGH, JM आयकर अपील सं/ I.T.A. Nos. 2493 & 2494/Ahd/2014 (निर्धारण वर्ा / Assessment Years: 1998-99 & 2010-11) बिधम/ M/s. Chemstar Organics (India) DCIT, Central Circle-1(1) Ltd. Baroda. Vs. 4th Floor, PNB House, Sir P. M. Road, Fort, Mumbai-400001. स्थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AAACC9210F (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) Assessee by: Shri Satish Modi Revenue by: Shri Mehul Jain (Sr. AR) सुनवाई की तारीख / Date of Hearing: 21/12/2021 घोषणा की तारीख /Date of Pronouncement: 22/02/2022 आदेश / O R D E R PER AMARJIT SINGH, JM: The assessee has filed the above mentioned appeals against the different order passed by the Commissioner of Income Tax (Appeals) -01, Baroda [hereinafter referred to as the “CIT(A)”] relevant to the A.Ys. 1998-99 & 2010-11. ITA. NO.2493/Ahd/2014 2. The assessee has filed the present appeal against the order dated 09.06.2014 passed by the Commissioner of Income Tax (Appeals) -01, Baroda [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.1998-99 wherein the penalty levied by the AO has been ordered to be confirmed. 3. The assessee has raised the following grounds: -

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 “1 To delete penalty of Rs.11,15,000/- for the various items of addition of income made.

“The above referred appeal is fixed for hearing on 28.07.2021 before the Hon‟ble Tribunal.

The appellant craves leave of your honours to raise the additional ground of appeal attached hereto as annexure „A‟. The said ground is a question of law and no new facts here to be brought on records. The said ground was inadvertently not raised before the lower authority. In view of the above we humbly request your honour to kindly admit and adjudicate the said additional grounds of appeal as the same goes to the root of the matter.

We are sorry for he in convenience caused to your honours in the said matter.” 5. The brief facts of the case are that the assessee filed its return of income on 31.11.1998 declaring total loss to the tune of Rs.2,29,35,893/- for the A.Y.1998-99. The return was processed u/s 143(1) of the Act on 14.05.2013 and loss was re-determined after adjustments to Rs.21,63,40,497/-. The assessment was finalized u/s 143(3) of the Act on 16.01.2001 assessing total loss to the tune of Rs.1,55,29,535/-. Thereafter, the assessment was again finalized u/s 144 r.w.s 147 of the Act on 29.03.2005 assessing loss to the tune

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 of Rs.90,77,624/-. While finalized the assessment, the following additions were made:- (i) Preoperative expenses in respect of Umraya Plant Rs.43,90,203/- (ii) Profits on trading of imported goods Rs.1,57,14,171/- (iii) Non-withdrawal of depreciation on additions to Umraya Plant Rs.4,90,291/- 5. Initially notice 271(1)(c) of the Act was issued and after the reply of the assessee, the penalty to the tune of Rs.11,15,000/- was levied. Feeling aggrieved, the assessee has filed an appeal before the CIT(A) who confirmed the order of the AO, therefore, the assessee has filed the present appeal before us. 6. We have heard the argument advanced by the Ld. Representative of the parties and perused the record carefully. All the issues are in connection with the confirmation of the penalty levied by the AO. At the very outset, the Ld. Representative of the assessee has argued that the penalty notice nowhere speaks about specific limb to levy the penalty because the particular charge was not tick off in the notice, therefore, in the said circumstances, the penalty is not liable to be sustainable in the eyes of law, hence the order of the CIT(A) confirming the penalty order of the AO is wrong against law and facts and is liable to be set aside. In support of these contentions the Ld. Representative of the assessee has placed reliance upon the law settled in ITA. No.1154/M/2014 in the case of CIT-11 Vs. Samson Perinchery and the order of the ITAT, Mumbai Bench in ITA. No.2555/M/2012 vide order dated 28.04.2017 titled as Meherjee Cassinath Holdings P. Ltd. Vs. ACIT, Circle-4(2). However, on the other hand, the Ld. Representative of the Department has

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 refuted the said contentions. The copy of notice dated 29.03.2005 is on the file in which the Assessing Officer nowhere specify any specific limb to levy the penalty because none of the charge was particularly tick off in the notice. It is not in dispute that the penalty u/s 271(c) of the Act is leviable on account of the concealment of particular of income and on account of furnishing the inaccurate particulars of income. Both have different connotations. In this regard, the Hon’ble Supreme Court has appreciated the distinction between both the limb in the case Dilip N. Shroff 161 taxman 218 (SC). As per the record, the assessment order speaks about levying the penalty on account of taken the action in view of provisions u/s 274 r.w.s. 271 (1)(c) of the Act but the notice nowhere specify any limb to levy the penalty. The notice is not justifiable in view of the law settled by the Bombay High Court in the case of CIT-11 Vs. Samson Perinchery. At the time of argument, the Ld. Representative of the assessee has also placed reliance upon the finding of the Hon’ble ITAT in ITA. No. 2555/M/2012 titled as Meherjee Cassinath Holdings P. Ltd. Vs. ACIT, Circle-4(2). The relevant para is hereby reproduced below:

“8. We have carefully considered the rival submissions. Sec. 271(1)(c) of the Act empowers the Assessing Officer to impose penalty to the extent specified if, in the course of any proceedings under the Act, he is satisfied that any person has concealed the particulars of his income or furnished inaccurate particulars of such income. In other words, what Sec. 271(1)(c) of the Act postulates is that the penalty can be levied on the existence of any of the two situations, namely, for concealing the particulars of income or for furnishing inaccurate particulars of income. Therefore, it is obvious

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 from the phraseology of Sec. 271(1)(c) of the Act that the imposition of penalty is invited only when the conditions prescribed u/s 271(1)(c) of the Act exist. It is also a well-accepted proposition that „concealment of the particulars of income‟ and „furnishing of inaccurate particulars of income‟ referred to in Sec. 271(1)(c) of the Act denote different connotations. In fact, this distinction has been appreciated even at the level of Hon'ble Supreme Court not only in the case of Dilip N. Shroff (supra) but also in the case of T. Ashok Pai, 292 ITR 11 (SC). Therefore, if the two expressions, namely „concealment of the particulars of income‟ and „furnishing of inaccurate particulars of income‟ have different connotations, it is imperative for the assessee to be made aware as to which of the two is being put against him for the purpose of levy of penalty u/s 271(1)(c) of the Act, so that the assessee can defend accordingly. It is in this background that one has to appreciate the preliminary plea of assessee, which is based on the manner in which the notice u/s 274 r.w.s. 271(1)(c) of the Act dated 10.12.2010 has been issued to the assessee-company. A copy of the said notice has been placed on record and the learned representative canvassed that the same has been issued by the Assessing Officer in a standard proforma, without striking out the irrelevant clause. In other words, the notice refers to both the limbs of Sec. 271(1)(c) of the Act, namely concealment of the particulars of income as well as furnishing of inaccurate particulars of income. Quite clearly, non-striking-off of the irrelevant limb in the said notice does not convey to the assessee as to which of the two charges it has to respond. The aforesaid infirmity in the notice has been sought to be demonstrated as a reflection of non-application of mind by the Assessing Officer, and in support, reference has been

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 made to the following specific discussion in the order of Hon'ble Supreme Court in the case of Dilip N. Shroff (supra):-

“83. It is of some significance that in the standard proforma 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. Thus, the Assessing Officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars. Even before us, the learned Additional Solicitor General while placing the order of assessment laid emphasis that he had dealt with both the situations.

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 10. In fact, at the time of hearing, the ld. CIT-DR has not disputed the factual matrix, but sought to point out that there is due application of mind by the Assessing Officer which can be demonstrated from the discussion in the assessment order, wherein after discussing the reasons for the disallowance, he has recorded a satisfaction that penalty proceedings are initiated u/s 271(1)(c) of the Act for furnishing of inaccurate particulars of income. In our considered opinion, the attempt of the ld. CIT-DR to demonstrate application of mind by the Assessing Officer is no defence inasmuch as the Hon'ble Supreme Court has approved the factum of non- striking off of the irrelevant clause in the notice as reflective of non- application of mind by the Assessing Officer. Since the factual matrix in the present case conforms to the proposition laid down by the Hon'ble Supreme Court, we proceed to reject the arguments advanced by the ld. CIT-DR based on the observations of the Assessing Officer in the assessment order. Further, it is also noticeable that such proposition has been considered by the Hon'ble Bombay High Court also in the case of Shri Samson Perinchery, ITA Nos. 1154, 953, 1097 & 1126 of 2014 dated 5.1.2017 (supra) and the decision of the Tribunal holding levy of penalty in such circumstances being bad, has been approved.

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 CIT-DR and find that a similar issue had come up before our coordinate Bench in the case of Dr. Sarita Milind Davare (supra). Our coordinate Bench, after considering the judgment of the Hon'ble Bombay High Court in the case of Smt. Kaushalya & Ors., (supra) as also the judgments of the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra) and Dharmendra Textile Processors, 306 ITR 277 (SC) deduced as under :-

“12. A combined reading of the decision rendered by Hon‟ble Bombay High Court in the case of Smt. B Kaushalya and Others (supra) and the decision rendered by Hon‟ble Supreme Court in the case of Dilip N Shroff (supra) would make it clear that there should be application of mind on the part of the AO at the time of issuing notice. In the case of Lakhdir Lalji (supra), the AO issued notice u/s 274 for concealment of particulars of income but levied penalty for furnishing inaccurate particulars of income. The Hon‟ble Gujarat High Court quashed the penalty since the basis for the penalty proceedings disappeared when it was held that there was no suppression of income. The Hon‟ble Kerala High Court has struck down the penalty imposed in the case of N. N. Subramania Iyer Vs. Union of India (supra), when there is no indication in the notice for what contravention the petitioner was called upon to show cause why a penalty should not be imposed. In the instant case, the AO did not specify the charge for which penalty proceedings were initiated and further he has issued a notice meant for calling the assessee to furnish the return of income. Hence, in the instant case, the assessing officer did not specify the charge for which the penalty proceedings were initiated and also issued an incorrect notice. Both the acts of the

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 AO, in our view, clearly show that the AO did not apply his mind when he issued notice to the assessee and he was not sure as to what purpose the notice was issued. The Hon‟ble Bombay High Court has discussed about non-application of mind in the case of Kaushalya (supra) and observed as under:-

“...The notice clearly demonstrated non-application of mind on the part of the Inspecting Assistant Commissioner. The vagueness and ambiguity in the notice had also prejudiced the right of reasonable opportunity of the assessee since he did not know what exact charge he had to face. In this back ground, quashing of the penalty proceedings for the assessment year 1967-68 seems to be fully justified.”

In the instant case also, we are of the view that the AO has issued a notice, that too incorrect one, in a routine manner. Further the notice did not specify the charge for which the penalty notice was issued. Hence, in our view, the AO has failed to apply his mind at the time of issuing penalty notice to the assessee.”

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 13. Apart from the aforesaid discussion, we may also refer to the one more seminal feature of this case which would demonstrate the importance of non-striking off of irrelevant clause in the notice by the Assessing Officer. As noted earlier, in the assessment order dated 10.12.2010 the Assessing Officer records that the penalty proceedings u/s 271(1)(c) of the Act are to be initiated for furnishing of inaccurate particulars of income. However, in the notice issued u/s 274 r.w.s. 271(1)(c) of the Act of even date, both the limbs of Sec. 271(1)(c) of the Act are reproduced in the proforma notice and the irrelevant clause has not been struck-off. Quite clearly, the observation of the Assessing Officer in the assessment order and non-striking off of the irrelevant clause in the notice clearly brings out the diffidence on the part of Assessing Officer and there is no clear and crystallized charge being conveyed to the assessee u/s 271(1)(c), which has to be met by him. As noted by the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra), the quasi-criminal proceedings u/s 271(1)(c) of the Act ought to comply with the principles of natural justice, and in the present case, considering the observations of the Assessing Officer in the assessment order alongside his action of non-striking off of the irrelevant clause in the notice shows that the charge being made against the assessee qua Sec. 271(1)(c) of the Act is not firm and, therefore, the proceedings suffer from non-compliance with principles of natural justice inasmuch as the Assessing Officer is himself unsure and assessee is not made aware as to which of the two limbs of Sec. 271(1)(c) of the Act he has to respond.

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 Act dated 10.12.2010 is untenable as it suffers from the vice of non- application of mind having regard to the ratio of the judgment of the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra) as well as the judgment of the Hon'ble Bombay High Court in the case of Shri Samson Perinchery (supra). Thus, on this count itself the penalty imposed u/s 271(1)(c) of the Act is liable to be deleted. We hold so. Since the penalty has been deleted on the preliminary point, the other arguments raised by the appellant are not being dealt with.”

In the result, the appeal filed by the assessee is hereby allowed.

ITA. NO.2494/Ahd/2014 8. The assessee has filed the present appeal against the order dated 10.06.2014 passed by the Commissioner of Income Tax (Appeals) -01, Baroda [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2010-11.

“1. To allow Rs.236800/- as professional fees paid by the company. 2. To allow Rs.1,66,18,517/- as depreciation on fixed assets as per Income Tax law during the year.

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 3. To delete addition of Rs.11,79,136/-, the amount of Unsecured loans received from NH Leasing Ltd. As income of the company.

S. No. Nature of Expenditure Nature Expenditure Amount 1 Chaitanya C Dyal & Co. Professional Fee 120,300/- 2 Naimish Jhaveri -do- 48,000/- 3 Kalyani & Associates -do- 31,000/- 4 Rishabh Shah -do- 37,500/- 2,36,800/- Finding reply non-justifiable, the AO raised the addition to the tune of Rs.2,36,800/-. The assessee also claimed the depreciation to the tune of Rs.1,66,18,517/- which was also not found justifiable, therefore, the same was also added to the income of the assessee. The assessee company received the unsecured loan in sum of Rs.11,79,136/- from N. H. Leasing Ltd. The assessee was asked to produce the genuineness of creditworthiness of transaction. The assessee failed to produce the evidence and the same was also added to the income of the assessee. The assessee also took the loan from thd

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 directors in cash. Notice issued. Finding reply non-justifiable, the loan in cash in sum of Rs.1,65,000 was added to the income of the assessee in view of the provisions u/s 269SS of the Act. The total income of the assessee was assessed at loss to the tune of Rs.(-)6,04,577/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who allowed the claim of the assessee partly but the assessee was not satisfied on the grounds raised in the appeal, therefore, the assessee filed the present appeal before us.

ISSUE NOs.1 & 2 11. At the time of arguments, these issues have not been pressed by the Ld. Representative of the assessee, therefore, these issues are being decided in favour of the revenue against the assessee being not pressed.

ISSUE NO.3 12. Under this issue the assessee has challenged the addition of Rs.11,79,136/- on account of unsecured loan received from N.H. Leasing Ltd. The assessee has submitted the confirmation of the account of the loan taken from N. H. Leasing Ltd., it is sister concern of the assessee company. It is observed that the revenue has allowed the expenses but disallowed the loan which nowhere seems justifiable. Moreover, it is revenue neutral. The confirmation letter submitted in the tapal by the N. H. Leasing nowhere described and discussed in the order. N. H. Leasing Company is the sister concern of the assessee who paid the loan to the assessee for existence of the assessee company. The copy of bank-statement has been given and copy of confirmation letter has been given by the directors of assessee company as well as N.H. Leasing Company who are common. Bank statement has been

ITA Nos. 2493 & 2494/Ahd/2014 A.Ys.1998-99 & 2010-11 filed. There is no cogent and convincing reasons to disallow the claim of the assessee, hence, the finding of the CIT(A) is not justifiable. Hence, we set aside the finding of the CIT(A) on this issue and allowed the claim of the assessee. Accordingly, this issue is decided in favour of the assessee against the revenue.

Order pronounced in the open court on 22/02/2022

Sd/- Sd/- (M. BALAGANESH) (AMARJIT SINGH) लेखध सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER मुंबई Mumbai; ददनांक Dated : 22/02/2022 Vijay Pal Singh/Sr. PS आदेश की प्रनिनलनि अग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant प्रत्यथी / The Respondent. 2. 3. आयकर आयुक्त(अपील) / The CIT(A)- 4. आयकर आयुक्त / CIT 5. दवभागीय प्रदतदनदध, आयकर अपीलीय अदधकरण, मुंबई / DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file. आदेशधिुसधर/ BY ORDER, सत्यादपत प्रदत //True Copy// उि/सहधिक िंजीकधर /(Dy./Asstt. Registrar) आिकर अिीलीि अनर्करण, मुंबई / ITAT, Mumbai