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Income Tax Appellate Tribunal, CHANDIGARH BENCH ‘A’, CHANDIGARH
Before: SMT.DIVA SINGH & SMT.ANNAPURNA GUPTA
आदेश/ORDER Per Annapurna Gupta, Accountant Member: This appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals)-I, Chandigarh [(in short ‘CIT(A)’] dated 29.9.2017 relating to assessment year 2004-05, upholding penalty levied u/s
2 ITA No.1661/Chd/2017 A.Y. 2004-05
271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to
as ‘Act’).
The Ld.Counsel for the assessee first took up ground
No.1 before us, which reads as under:
“1. That the Ld. CIT-(A), has grossly erred in upholding the penalty levied by the AO which itself has been levied on the basis of illegal show cause notice issued u/s 274 r.w.s. 271(l)(c) as it did not specify on which limb of section 271(l)(c) of the Act, the penalty proceedings had been initiated, i.e., whether the concealment of particulars of income or furnishing of inaccurate particulars of income.” 3. It was pointed out that this ground had been raised
before us for the first time and was a legal ground
challenging the validity of the order passed imposing
penalty u/s 271(1)(c) of the Act. Ld.Counsel for the assessee
pleaded admittance of the same before us, contending that
all relevant facts for adjudicating the ground were already
on record and no new /fresh facts were required to be
brought on record and being a legal ground challenging the
validity of the order passed , the same ought to be
admitted.Reliance was placed on the decision of the apex
court in the case of National Thermal Power Co. Ltd. vs
Commissioner of Income Tax 229 ITR 383 (SC)
The Ld. DR objected to the admission of the same.
3 ITA No.1661/Chd/2017 A.Y. 2004-05
We find merit in the contention of the Ld.Counsel for
the assessee. Undeniably the present ground, is a legal
ground, challenging the levy of penalty basis an illegality in
the notice issued by the department for initiating penalty
proceedings. It effects the very foundation/ basis of levy of
penalty and can be adjudicated on the basis of facts on
record since it refers to illegality in the notice issued by
the department which is part of its record. As per the
decision of the Hon’ble Apex court in the case of National
Thermal Power Co. Ltd.(supra) the Tribunal is well within its
powers to admit such additional grounds not raised earlier.
The said ground was accordingly admitted for hearing and
the objection of the Ld. DR overruled.
Thereafter, making arguments on the merits of the
issue, the Ld.Counsel for the assessee contended, that the
validity of the order has been challenged on the ground that
the notice issued for levy of penalty was illegal since it did
not specify the act of the assessee for which penalty was
levied, whether for concealment of particulars of income or
for furnishing of inaccurate particulars of income. The
Ld.Counsel for the assessee drew our attention to a copy of
the notice issued u/s 274 of the Act in the present case
4 ITA No.1661/Chd/2017 A.Y. 2004-05
placed at Paper Book page No.2 to point out the aforesaid
fact. The Ld.Counsel for the assessee further relied upon
various decisions of the Tribunal and the Hon'ble High
Court and Hon'ble Apex Court, in support of its contention
that in view of the illegality in the notice issued ,the penalty
order passed was bad in law. The case laws referred to
before us by way of filing copies of the same in the form of
a paper book, are as under:
ITO Vs. Sh. Rajesh Kumar, ITA No. 866/ CHD/2017, dated 01.11.2017. 2. Sh. Nitin Chauhan Vs. ITO, ITA No. 1312/ CHD/2018, dated 20.02.2019. 3. Harpreet Kaur Vs. ITO, ITA No. 709/ASR/2017, dated 17.01.2019. 4. CIT Vs. Manjunatha Cotton & Ginning Factory, [2013] 35 taxmann.com 250 (Karnataka HC). 5. CIT Vs. SSA'S Emerald Meadows, [2016] 73 taxmann.com 241 (Karnataka HC). 6. CIT Vs. SSA'S Emerald Meadows, [2016] 73 taxmann.com 248 (Supreme Court). 7. CIT Vs. Samson Perinchery, [2017] 88 taxmann.com 413 (Bombay HC). 8. Pr. CIT Vs. Smt. Baisetty Revathi, [2017] 398 ITR 88 (Andhara Pradesh & Telengana HC). 9. Jeetmal Choraria Vs. ACIT, [2018] 91 taxmann.com 311 (Kolkata Trib.).\ 10. Ashok Sahakari Sakhar Karkhana Ltd. Vs. ACIT, [2017] 59 ITR(T) 171 (Pune Trib.).
5 ITA No.1661/Chd/2017 A.Y. 2004-05
The Ld. DR on the other hand pleaded that since the
issue was not raised before the Ld.CIT(A),it would be
appropriate to restore the matter back to the CIT(A) to verify
the contentions of the assessee and thereafter adjudicate
the issue in accordance with law. The Ld. DR also pointed
out that the Hon'ble Madras High Court had ruled in favour
of the Revenue on this issue in the case of Sundram Finance
Ltd. vs Assisstant commissioner of Income Tax in TC Appeal
No. 876 and 877 of 2008 dated 23-04-2018.
The Ld.Counsel for the assessee did not object to the
same.
In view of the above, since undoubtedly, the assessee
has raised a legal ground before us for the first time,
challenging the validity of the order passed levying penalty,
referring to illegality in the notice issued for initiating the
proceedings to levy penalty by the AO, we consider it fit to
restore the matter back to the CIT(A) to verify the contention
of the assessee and thereafter adjudicate the issue in
accordance with law after taking note of the various
decisions citied by both the parties.
6 ITA No.1661/Chd/2017 A.Y. 2004-05
Further since it is a legal issue challenging the validity of the order passed itself, the same needs to be adjudicated first before deciding the issue on merits. Therefore, the entire appeal is restored back to the Ld. CIT(A), to decide and pass an order afresh on the legal issue as well as on merits of the case. Needless to add that the assessee be given due opportunity of hearing.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Open Court.
Sd/- Sd/- �दवा �संह अ�नपूणा� गु�ता (ANNAPURNA GUPTA) (DIVA SINGH) �याय�क सद�य/Judicial Member लेखा सद�य/Accountant Member �दनांक /Dated: 20th August, 2019 *रती* आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File
आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar