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Income Tax Appellate Tribunal, INDORE BENCHE, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
आदेश / O R D E R
PER BENCH
This bunch of 6 appeals in case of the assessee
pertaining to the assessment years 2002-03 & 2004-05 to
is directed against different orders of the 2008-09
Commissioner of Income Tax (Appeals)-I, Bhopal, all dated
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma 7.12.2016 arising out of different orders u/ 271(1)(c) of
Income Tax Act (in short referred as ‘Act’) Act framed by the
ACIT 1(1), Bhopal.
Since common issue is involved, these appeals were
heard together and are being disposed of by this
consolidated order for the sake of convenience.
Briefly stated, the facts, as culled out from record, are
that search and seizure operations were carried out u/s
132(1) of the Act on 7.9.2007 at the residential premises of
the assessee. Protective assessments were made in the case
of the assessee u/s 153A read with section 143(3) of the
Act vide order dated 30.12.2009 whereas substantive
additions were made in the hands of the assessee’s father,
Dr. Yogiraj Sharma. When the quantum issue came up
before the Tribunal, protective addition in the hands of the
assessee was confirmed as substantive addition.
Subsequently, penalty proceedings were initiated u/s 2
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma 271(1)(c) of the Act and notices u/s 274 r.w.s. 271(1)(c) of
the Act of the Act dated 16.6.2015 were issued alleging that
“has concealed the particulars of your income or has
furnished inaccurate particulars of such income”. The
Assessing Officer on the strength of the order of the
Tribunal confirmed the substantive addition in the hands
of the assessee and levied penalty u/s 271(1)(c) of the Act
of Rs. 60,000/- for the assessment year 2002-03, Rs.
2,50,000/- for the assessment year 2004-05,
Rs.8,00,000/- for the assessment year 2005-06,
Rs.21,00,000/- for the assessment year 2006-07 and
Rs.11,50,000/- for the assessment year 2007-08 and
Rs.1,55,000/- for the assessment year 2008-09.
Aggrieved, the assessee preferred appeal before the learned
Commissioner of Income Tax (Appeals) but could not
succeed. Now the assessee is in appeal before the Tribunal
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma raising following common grounds of appeal for six
assessment years :-
(i) The order imposing penalty u/s 271(1)(c) of Income tax
Act 1961 is illegal, invalid and bad in law.
(ii) The learned CIT(A) erred in confirming the penalty
imposed u/s 271(1)(c) of the Income tax Act, 1961.
(iii) The learned authorities erred in holding that penalty
u/s 271(1)(c) of Income tax Act can be levied in respect
to protective addition.
(iv) The show cause notice issued u/s 271 (1)© in case of
assessee is illegal, invalid and bad in law and
consequent levy of penalty for the same is unjustified,
unwarranted and bad in law.
(v) Any other ground shall be prayed at the time hearing.
We observe that the assessee has challenged the
legality of the notice u/s 274 r.w.s. 271(1)(c) of the Act and 4
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma has also challenged the findings of the learned
Commissioner of Income Tax (Appeals) confirming the
penalty even when the addition made by the Assessing
Officer was on protective basis. We shall first take up the
legal ground for the alleged notice as well as order u/s
271(1)(c) of the Act being illegal, invalid and bad in law.
The learned counsel for the assessee submitted written
submissions as under :-
“Ground No. 4: Show Cause Notice for Initiation and Levy of Penalty u/s 271(1)(c). (P- 170 to 177) [Vol.-I]
A) Notice issued u/s 271(1)(c) is in printed proforma and no specific charge is specified for which penalty u/s 271(1)(c) of I.T. Act 1961 is sought to be levied.
B) The penalty levied in respect to show cause notice which is bad in law as observed hereinabove is unsustainable. Reliance on:
i) (2017) 98 CCH 0039 Mum HC CIT vs. Samson Pernchery (P- 95 – 98)(95)[Vol.-I]
ii) Supreme Court order Petition(s) for Special Leave to Appeal (C) ...…../2016 5
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma (CC No.11485/2016) in the case of M/s. SSA’s Emerald Meadows vide order dated 05/08/2016. (P- 99) [Vol.-I] i) Hon’ble High Court of Karnataka at Bengaluru order in ITA No.380 of 2015 in the case of M/s. SSA’s Emerald Meadows vide order dated 23/11/2015. (P- 100 – 103)(102, 103) [Vol.-I] ii) Hon’ble High Court of Hyderabad in the case of Smt. Baisetty Revathi in ITTA No.684 of 2016 vide judgement dated 13/07/2017. (P- 141 – 151) (149, 150, 151) [Vol.-I]
v) Hon’ble ITAT, Jaipur Bench, Jaipur in the case of Narayana Heights & Towers in ITA No.1033/JP/2016 vide order dated 20/02/2017. (P- 152 – 171) (165, 166, 168) [Vol.-I]
Apart from the above, the learned counsel for the assessee
submitted that the additions were made on protective
basis. When the notices were issued for levying the
penalty, the Assessing Officer was not clear as to whether it
has to be levied for concealing the particulars of income or
furnishing of inaccurate particulars of income and even in
the penalty order also, the Assessing Officer is not clear
about the limb under which the penalty is to be levied.
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma 6. On the other hand, the learned DR vehemently argued
submitting that the coordinate Bench has already held that
the addition in the hands of the assessee is on substantive
basis. Therefore, the penalty levied is justified. However,
the ld. DR could not contradict the submissions of the
assessee with regard to legality of the notice issued u/s
274 r.w.s. 271(1)(c) of the Act.
We have considered the rival contentions and perused
the record placed before us. The common issue raised in
this Bunch of appeal is levying penalty u/s 271(1)(c) of the
Act. In the case of the assessee search u/s 132 of the Act
was carried out and substantive additions were made in
the hands of the assessee’s father Yogiraj Sharma. On the
protective addition so made in the hands of the assessee.
Penalty proceedings were initiated. The assessee could not
get relief up to the first appellate authority. Before us, the
assessee has raised the legal ground no. 4 alleging that the
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma show cause notice issued u/s 271(1)(c) of the Act is ilegal
and bad in law and consequently levy of penalty for the
same is unjust, unwarranted and bad in law. To adjudicate
this issue, we reproduce below two relevant portions of the
show cause notice for the assessment year 2002-03 issued
by ACIT 1(1), Bhopal, vide letter dated 16.6.2015 as under
:-
“Whereas in the course of proceedings before me
for the assessment year 2002-03 it appears to me that
you :-
Have without reasonable cause failed to furnish the
return of income which you were required to furnish by a
notice given under section 22(1)(/22(2)/34 of the Indian
Incometax Act, 1961 or which you were required to
furnish under section 139(1).
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma Have without reasonable cause failed to comply with a
notice under section 22(4)/23(2) of the Indian Incometax
Act, 1961 or under section 142(1)/143(2) of the Income
tax Act, 1961, No….dated.
have concealed the particulars of your income or
have furnished inaccurate particulars of such income.
Section 271(1)(c) of the Act(1)(c).
xxx xxx xxx
Similar notices were also made for the assessment
years 2004-05 to 2008-09. Under these notices, the reason
given by the Assessing Officer is an allegation which is not
specific. The Assessing Officer has alleged that either the
assessee has concealed the particulars of income or has
furnished inaccurate particulars of income. It is clearly
visible from the notice that at the time of initiation of
penalty proceedings the Assessing Officer has not made
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma specific satisfaction as to whether the assessee is guilty of
concealing the particulars of income or furnishing
inaccurate particulars of income. Similarly, when the
Assessing Officer finally framed the penalty order on
31.7.2015 in para 8 of the impugned order the Assessing
Officer observed that “I am satisfied that the assessee has
concealed the particulars of income or furnished inaccurate
particulars of such income within the meaning of section
271(1)(c) of the Act.” It is crystal clear that even in the
penalty order the Assessing Officer is not sure about the
specific charge on the assessee for which penalty has been
levied. In these facts, whether the Assessing Officer was
justified in levying the penalty u/s 271(1)(c) of the Act we
find that the coordinate Bench of Jaipur in the case of
Narayana Heights & Towers; ITA No. 1033/JP/2016 order
dated 20.2.2017 adjudicated the very same issue and
decided the same in favour of the assessee following the
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma judgment of the Hon'ble Karnataka High Court in the
caseof CIT vs. Manjunath Cotton & Ginning Factory; 359
ITR 565 by observing as under :-
“3.2. We have heard the rival contention, perused the material available on
record and gone through the orders of the authorities below. For the sake of
clarity the relevant contents of the Assessment Order are reproduced as
under: “Penalty u/s 271(1)(c) is separately as assessee has concealed the
income.” Relevant contents of the Penalty Order are reproduced as under:-
”As the assessee had not filed any appeal against order of the AO and it
appears that the assessee is satisfied with the order passed by the AO.
Therefore, it appears that the assessee has nothing to say and has no
objection regarding imposing the penalty u/s 271(1)(c) of I.T. Act, 1961.
Therefore, I impose a penalty of equal to 100% of tax sought to be evaded
on account of the above acts of the assesee of Rs. 34,05,436/- i.e. 100% tax
evaded.” In the light of the above, we need to examine whether assessment
order and the penalty order comply with the provisions of section 271(1)(c)
of the Act. We find that on page 3 of the assessment order, the assessing
order, AO observed as under:-
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma “As the assessee has concealed/furnished the inaccurate particulars of
income therefore, penalty u/s 271(1)(C) is also initiated.” 3.3. As per section
271 (1)(c), the assessing officer is empowered to impose penalty if in the
course of any proceedings under this Act is satisfied that any person has
concealed the particulars of his income or furnished inaccurate particulars
of such income. From the above provision it is clear that there has to be a
specific satisfaction by the Assessing Officer that the assessee is guilty of
concealing the particulars of his income or furnishing inaccurate particulars
of such incomes. 3.4. From the above, it is clear that the assessing officer
should give a specific finding. In the present case, in the assessment order
as noted above the assessing officer has stated that the assessee has
concealed/furnished the inaccurate particulars of income. Therefore, the
penalty under Section 271(1) (c) was also initiated, from this it can not be
inferred whether there is specific charge of concealing the particulars of
income or furnished the inaccurate particulars of such income Law is well
settled that the assessing officer has to come to a definite satisfaction
whether the assessee has concealed the income of particulars or furnished
the inaccurate particulars of income. The Hon’ble Karnataka High Court in
the case of CIT and Another Vs. Manjunatha Cotton and Ginning
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma Factory,359 ITR 565(Kar.) has held that the notice u/s 274 of the Act should
specifically state as to whether penalty is being proposed for concealment
of particulars of income or inaccurate particulars of income. In the present
case notice under section 274 dated 25/3/2015 enclosed at paper book
page 16 reads as under: “Penalty Notice Under Section 274, Read with
Section 271 of the IT Act. 1961” Whereas in the course of proceedings
before me for the Assessment Year 2012-13. It appears to me that you
have:- Read With Section 271(1)(c) concealed particulars of income or
furnished inaccurate particulars of income.” Therefore, there is no specific
charge by the Assessing Officer. Further, it is noted that the Assessing
Officer in penalty order (as noted hereinabove) has proceeded on the basis
of the assumption that the assessee is satisfied with the assessment order.
Therefore, it appears that the assessee has nothing to say and has no
objection regarding the imposing of the penalty under section 271(1)(c) of
the Act. In our considered view, the assessing officer was not justified in
imposing the penalty on this basis, the action of the assessing officer is
contrary to the provision of law. The ld. CIT (A) without considering the
binding precedents proceeded to hold that the penalty order can not be
invalidated on account of any mistake or affect or omission if anywhere in
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma view of the provision of section 292B of the Act. This finding of the Ld. CIT
(A) is contrary to the judgment of the Hon’ble Karnataka High Court
rendered in the case of CIT and Another Vs. Manjunatha Cotton and Ginning
Factory,359 ITR 565(Kar.) (supra). The Hon’ble Karnataka High Court has
held as under:- “ 63. In the light of what is stated above, what emerges is as
under : (a) Penalty under section 271(1)(c) is a civil liability. (b) Mens rea is
not an essential element for imposing penalty for breach of civil obligations
or liabilities. (c) Willful concealment is not an essential ingredient for
attracting civil liability. (d) Existence of conditions stipulated in section
271(1)(c) is a sine qua non for initiation of penalty proceedings under
section 271. (e) The existence of such conditions should be discernible from
the assessment order or the order of the appellate authority or the
revisional authority. (f) Even if there is no specific finding regarding the
existence of the conditions mentioned in section 271(1)(c), at least the facts
set out in Explanation 1(A) and 1(B) it should be discernible from the said
order which would by a legal fiction constitute concealment because of
deeming provision. (g) Even if these conditions do not exist in the
assessment order passed, at least, a direction to initiate proceedings under
section 271(1)(c) is a sine qua non for the Assessing Officer to initiate the
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma proceedings because of the deeming provision contained in sub-section
(1B). (h) The said deeming provisions are not applicable to the orders
passed by the Commissioner of Income-tax (Appeals) and the Commissioner.
(i) The imposition of penalty is not automatic. (j) The imposition of penalty
even if the tax liability is admitted is not automatic. (k) Even if the assessee
has not challenged the order of assessment levying tax and interest and has
paid tax and interest that by itself would not be sufficient for the authorities
either to initiate penalty proceedings or impose penalty, unless it is
discernible from the assessment order that, it is on account of such
unearthing or enquiry concluded by the authorities it has resulted in
payment of such tax or such tax liability came to be admit ted and if not it
would have escaped from tax net and as opined by the Assessing Officer in
the assessment order. (l) Only when no explanation is offered or the
explanation offered is found to be false or when the assessee fails to prove
that the explanation offered is not bona fide, an order imposing penalty
could be passed. (m) If the explanation offered, even though not
substantiated by the assessee, but is found to be bona fide and all facts
relating to the same and material to the computation of his total income
have been disclosed by him, no penalty could be imposed. (n) The direction
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma referred to in Explanation 1(B) to section 271 of the Act should be clear and
without any ambiguity. (o) If the Assessing Officer has not recorded any
satisfaction or has not issued any direction to initiate penalty proceedings,
in appeal, if the appellate authority records satisfaction, then the penalty
proceedings have to be initiated by the appellate authority and not the
assessing authority. Notice under section 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
(q) Sending printed form where all the grounds mentioned in section 271
are mentioned would not satisfy the requirement of law. (r) The assessee
should know the grounds which he has to meet spe cifically. Otherwise, the
principles of natural justice is offended. On the basis of such proceedings, no
penalty could be imposed to the assessee. (s) Taking up of penalty
proceedings on one limb and finding the assessee guilty of another limb is
bad in law. (t) The penalty proceedings are distinct from the assessment pro
ceedings. The proceedings for imposition of penalty though emanate from
proceedings of assessment, it is independent and separate aspect of the
proceedings. (u) The findings recorded in the assessment proceedings in so
far as "concealment of income" and "furnishing of incorrect particulars"
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma would not operate as res judicata in the penalty proceedings. It is open to
the assessee to contest the said proceedings on the merits. However, the
validity of the assessment or reassessment in pursuance of which penalty is
levied, cannot be the subject matter of penalty proceedings. The assessment
or reassessment cannot be declared as invalid in the penalty proceedings.”
In the light of the above judgment we are unable to affirm the action of the
authorities below. As the initiation of penalty under section 271(1)(c) vide
notice 274 of the Act is not inconformity with the requirement of the law.
Thus, the Penalty order can not be sustained in the eyes of the law. Same
deserves to be quashed. Hence, Ground no. 1 the assessee’s appeal is
allowed.”
From the perusal of the above order of the Tribunal we
find that the case of the assessee is squrely covered by this
decision. We, therefore, in the given facts and
circumstances of the case, are of the considered view that
initiation of penalty proceedings by way of issuing notice
u/s 274 r.w.s. 271(1)(c) of the Act do not meet the
requirements as envisaged in the provisions of law and,
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma therefore, all the six penalty orders under consideration
cannot be sustained in the eyes of law. We accordingly
quash all the six penalty orders and allow this common
legal ground no. 4 raised by the assessee in all these six
appeals thereby deleting penalty of Rs.60,000/- for the
assessment year 2002-03, Rs. 2,50,000/- for the
assessment year 2004-05, Rs.8,00,000/- for the
assessment year 2005-06, Rs.21,00,000/- for the
assessment year 2006-07 and Rs.11,50,000/- for the
assessment year 2007-08 and Rs.1,55,000/- for the
assessment year 2008-09
Apropos other common grounds which relate to
merits of the case, we find it academic to deal with the
same as we have already deleted the impugned penalty u/s
271(1)(c) of the Act at Rs.60,000/- for the assessment year
2002-03, Rs. 2,50,000/- for the assessment year 2004-05,
Rs.8,00,000/- for the assessment year 2005-06,
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma Rs.21,00,000/- for the assessment year 2006-07 and
Rs.11,50,000/- for the assessment year 2007-08 and
Rs.1,55,000/- for the assessment year 2008-09 and,
therefore, the remaining grounds are dismissed as
infructuous.
In the result, all the six appeals of the assessee
stand allowed.
Pronounced in open Court on 16 May, 2018.
Sd/- sd/-
(KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER
16th May, 2018 Dn/- Copy to – Appellant/Respodent/Pr.CIT/CIT(A)/DR/Guard File By order Private Secretary
ITA Nos. 136 to 147/Ind/2017 Shri Gaurav Sharma