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Income Tax Appellate Tribunal, MUMBAI BENCHES “A”, MUMBAI
Before: SHRI G. MANJUNATHA (AM) & SHRI RAM LAL NEGI (JM)
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES “A”, MUMBAI BEFORE SHRI G. MANJUNATHA (AM) AND SHRI RAM LAL NEGI (JM) Assessment Year: 2013-14 M/s Alcon Products, The CIT (A)-1, Shop No. 36, Amrapali Shopping Room No. 29, A Wing, Arcade, Pokharan Road No. 2, 6th Floor, Ashar IT Park, Vasant Vihar, Vs. Road No. 16-Z, Thane - 400601 Wagle Industrial Estate, PAN: AAJFA6379H Thane - 400604
(Appellant) (Respondent) Assessee by : Ms. Chaitee Londhe (AR) Revenue by : Shri Samatha Mullamudi (DR) Date of Hearing: 21/02/2020 Date of Pronouncement: 18/05/2020
O R D E R PER RAM LAL NEGI, JM This appeal has been filed by the assessee against the order dated 25.01.2017 passed by the Commissioner of Income Tax (Appeals)-1 (for short ‘the CIT(A), Thane, for the assessment year 2013-14, whereby the Ld. CIT(A) has dismissed the appeal filed by the assessee against the penalty order passed u/s 271 (1) (c) of the Income Tax Act, 1961 (for short the ‘Act’) and confirmed the penalty. 2. Brief facts of the case are that the assessee firm engaged in the business of manufacturing of Aluminum components, auto windows etc., filed its return of income for the assessment year under consideration declaring the total income at Rs. 2,14,84,580/-. The case was selected for scrutiny and the AO passed the assessment order u/s 143 (3) of the Act determining the total income of the assessee at Rs. 2,67,34,580/- after making addition of Rs. 52,50,000/- treating the donation given by the assessee to School of Human Assessment Year: 2013-14
Genetic and Population Health, Kolkata amounting to Rs. 30,00,000/- as bogus transaction. In the first appeal, the Ld. CIT (A) not only confirmed the addition made by the AO but enhanced the income by treating the payment of Rs. 30,00,000/- towards donation to Sh. Arvnindo Institute of Applied Scientific Research, Pondicherry. On the basis of the aforesaid addition, the Ld. CIT (A) initiated proceedings u/s 271 (1) (c) of the Act and imposed penalty of Rs. 16,22,250/- for furnishing inaccurate particulars of income and for deemed concealment of income in terms of Explanation 1(B) of section 271 (1) (c) of the Act. Aggrieved by the order of Ld. CIT (Appeals), the assessee is in appeal before the Tribunal. 3. The assessee has challenged the impugned order passed by the Ld. CIT (A) on the following effective grounds:- 1. “The learned CIT (A) failed to consider the explanation offered by the appellant that donation to the impugned institution was given on the basis of approval by the income tax department to such institution and the details furnished in the income tax return could not be said to be inaccurate.
The learned CIT (A) erred in facts and law in invoking explanation 1(B) to section 271 (1)(c) regarding deemed concealment particularly when the explanation offered by the appellant was bona fine and all the material facts were disclosed by the appellant.
The learned CIT (A) failed to appreciate that the appellate acceded to the enhancement of the income in order to avoid needless litigation and buy peace and paid taxes accordingly.” 4. During the pendency of the appeal the assessee raised two additional grounds which are as under:-
The learned CIT (A) erred in facts and in law in initiating penalty proceedings for furnishing inaccurate particulars and subsequently levying penalty u/s 271 (1) (c) on account of both Assessment Year: 2013-14
furnishing inaccurate particulars of income as well as concealment of particulars of income.
The learned CIT (A) erred in facts and in law in not appreciating that ‘furnishing of inaccurate particulars of income’ and ‘concealment of particulars of income are two distinct limbs of section 271 (1) (c) having different connotations and satisfaction to the effect that appellant has either furnished inaccurate particulars of income or has concealed particulars of income is a condition precedent for levying penalty u/s 271 (1) (c).”
Since, there is a delay of 6 days in filing appeal, the Ld. counsel for the assessee submitted that the assessee has filed an application for condonation of delay on the ground that the penalty order was passed by the Ld. CIT (A) in the first instance and the assessee did not file Form 35, statements of facts and grounds of appeal under a bonafide belief. However, when the assessee came to know that the said documents are required to be attached, the assessee arranged the said documents and in that process, the assessee could not file the present appeal within the limitation period. The Ld. counsel further submitted that since there was a sufficient cause for not filing the present appeal within the limitation period, the delay of 6 days may be condoned and the assessee may be allowed to argue its case on merits. 6. On the other hand, the Ld. departmental representative (DR) opposed the application on the ground that the reason mentioned by the assessee is not sufficient to condone the delay of 6 days in filing the appeal. 7. We have heard the rival submissions of the parties and perused the material on record. Sub-section 5 of section 253 of the Income Tax Act provides that the Tribunal may admit appeal or permit filing of memorandum of cross- objection of respondent after expiry of relevant period of limitation referred to in sub-section 3 and 4 section 253, if it is satisfied that there was sufficient cause for not presenting it within that period. Expression “sufficient cause” in this section has also been used in section 5 of Indian Limitation Act, 1961. This expression has come for consideration before the Hon’ble Supreme Assessment Year: 2013-14
Court as well as before the Hon’ble High Courts and the Hon’ble courts have held that whenever issue of limitation comes for consideration before adjudicating authority, the expression “sufficient cause” should be considered with justice oriented approach. Hence, following the principles of law laid down by the courts of law in various cases, we allowed the application for condonation of delay filed by the assessee in the interest of justice and condoned the delay of 6 days in filing the present appeal. Accordingly, we asked the Ld. counsel to argue the assessee’s case. 8. At the outset, the Ld. counsel submitted that the order passed by the Ld. CIT (A) is bad in law as the Ld. CIT (A) had ordered to initiate penalty proceedings u/s 271 (1) (c) of the Act for furnishing inaccurate particulars of income in quantum appeal, whereas he has confirmed the penalty levied by the AO for furnishing inaccurate particulars of income and for deemed concealment of income in terms of Explanation 1(B) of section 271 (1) (c) of the Act. The Ld. counsel invited our attention to the contents of notice issued by the AO u/s 274 r/w section 271 of the Act, in which the AO had asked the assessee to show cause as to why penalty should not be imposed u/s 271(1)(c) of the Act for furnishing inaccurate particulars of income. The Ld. counsel further submitted that concealment of income and furnishing of inaccurate particulars are two distinct terms which carry different connotations. Therefore, the AO cannot impose penalty for concealment of income as well as for furnishing inaccurate particulars of income without giving notice to the assessee for initiating penalty under both the limbs. The Ld. counsel further pointed out that this issue is covered in favour of the assessee by the judgment of the Hon’ble Bombay High Court in the case of CIT vs. Samson Perinchery (Bom), ITA No. 1154 of 2014 and the decisions of the Mumbai Benches of the ITAT in the following cases: 1. Mujli P Nandu (HUF) vs. ITO, ITA No. 4290/Mum/2014, A.Y. 2008-09. 2. Bermaco Industries Limited vs. Assistant Commissioner of Income Tax, ITA NO. 2825/Mum/2016. Assessment Year: 2013-14
M/s Cenzar Industries Ltd. vs. ITO, ITA No.1970/Mum/2015, A.Y.2006- 07. 4. Prince Consultancy (P) Ltd. vs. Deputy Commissioner of Income Tax IT Appeal No. 6068 (Mum) of 2016, A.Y. 2012-13. 9. On the other hand the Ld. DR supporting the order passed by the Ld. CIT(A) submitted that since the assessee had furnished inaccurate particulars of its income and also concealed its income, the Ld. CIT(A) has rightly confirmed the penalty levied by the AO. 10. We have heard the rival submissions and perused the material on record in the light of the rival contentions of the parties. As pointed out by the Ld. counsel, in the present case the Ld. CIT(A) ordered to initiate proceedings u/s 271(1)(c) of the Act for furnishing inaccurate particulars of income. Accordingly, AO issued notice u/s 274 r/w section 271 of the Act, asking the assessee to explain as to why penalty should not be imposed for furnishing inaccurate particulars of income. The assessee contended that since it has disclosed all the details in the return of income, neither it has concealed the particulars of income nor furnished inaccurate particulars to initiate proceedings u/s 271 (1) (c) of the Act. The assessee further contended that mere making an incorrect claim does ipso facto make it liable for penalty u/s 271(1)(c) of the Act. However, the AO rejecting the contention of the assessee levied penalty for furnishing inaccurate particulars of income and for concealment of income. The Ld. CIT(A) has reproduced the relevant portion of the said notice in para No. 13 of his order which reads as under:
“The appeal order dated 25.01.2017 in Appeal No. 10221/16- 17 was passed in your case for A.Y. 2013-14, wherein your income was enhanced by Rs. 52,20,000/- in respect of payment made of Rs. 30,00,000/- to Shri Arvido Institute of Applied Scientific Research Trust, Pondicherry. On being asked to substantiate this deduction you were not able to do so, as a result of which your income was enhanced by an amount of Rs. 52,50,000/-. Penalty proceedings u/s 271 (1) (c) of the I.T. Act were also initiated for furnishing inaccurate particulars of Assessment Year: 2013-14
income. Notice u/s 274 r.w.s. 271 was also issued to you on 25.01.2017, in response to which written submissions were filed on 24.03.2017. You are once again given an opportunity of being heard in terms of section 274 r.w.s. 271 and to show cause why penalty u/s 271 (1) (c) of the I.T. Act should not be imposed in your case for furnishing inaccurate particulars of income and also in terms of Explanation 1(B) of section 271 (1) (c) of the I.T. Act for failure to substantiate your explanation for claim of this deduction. For this purpose your case is fixed for hearing on 21.07.2017 at 11.30 a.m.”
From the contents of the notice aforesaid, it is abundantly clear that the AO had issued notice to the assessee u/s 274 r.w.s. 271 for furnishing inaccurate particulars of its income. However, the penalty was imposed for furnishing inaccurate particulars as well as for concealment of income. The said order was affirmed by the Ld. CIT (A) in the first appeal, which is clear from para 19 of the impugned order passed by the Ld. CIT (A). 12. In the case of CIT vs. Samson Perinchery (supra), the Hon’ble Bombay High Court, considering the judgment of the Hon’ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory 359 ITR 565 (Karnataka), held the notice issued u/s 274 r.w.s. 271 (1) (c) of the Act, bad in law for the reason that the order imposing penalty has to be made only on the ground of which the penalty proceedings has been initiated. The observations of the Hon’ble Karnataka High Court are as under: “5. The grievance of the Revenue before us is that there is no difference between furnishing of inaccurate particulars of income and concealment of income. Thus, distinction drawn by the impugned order is between Tweedledum and Tweedledee. In the above view, the deletion of the penalty, is unjustified. 6. The above submission on the part of the Revenue is in the face of the decision of the Supreme Court in T. Ashok Pai v. CIT[2007] 292 ITR 11/161 Taxman 340 [relied upon in Manjunath Cotton & Ginning Factory (supra)] - wherein it is observed that concealment of income and furnishing of inaccurate particulars of income in Section 271(1)(c) of the Act, carry different meanings/connotations. Therefore, the satisfaction of the Assessing Officer with regard to only one of Assessment Year: 2013-14
the two breaches mentioned under Section 271(1)(c) of the Act, for initiation of penalty proceedings will not warrant/permit penalty being imposed for the other breach. This is more so, as an Assessee would respond to the ground on which the penalty has been initiated/notice issued. It must, therefore, follow that the order imposing penalty has to be made only on the ground of which the penalty proceedings has been initiated, and it cannot be on a fresh ground of which the Assessee has no notice. 7. Therefore, the issue herein stands concluded in favour of the Respondent-Assessee by the decision of the Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory (supra). Nothing has been shown to us in the present facts which would warrant our taking a view different from the Karnataka High Court in the case of Manjunatha Cotton and Ginning Factory (supra).” 13. Further, as pointed out by the Ld. counsel, the coordinate Benches have decided the identical issue in favour of the assessee in the case of Mujli P Nandu (HUF) vs. ITO, Bermaco Industries Limited vs. Assistant Commissioner of Income Tax, M/s Cenzar Industries Ltd. vs. ITO (supra) Prince Consultancy (P) Ltd. vs. Deputy Commissioner of Income Tax (supra). In the present case, since the AO had issued notice u/s 274 r.w.s. 271 of the Act for furnishing inaccurate particulars, but levied penalty under both the limbs i.e. for furnishing inaccurate particulars of income and concealment of income, the impugned order passed by the Ld. CIT (A) is contrary to the ratio laid down by the Hon’ble High Courts discussed above. Hence, in our considered view the impugned order is bad in law and liable to be set aside. The coordinate Benches of the Tribunal have decided the similar issues in favour of the assessee in the cases discussed above. Hence, respectfully following the judgments of the Hon’ble High Courts and the decisions of the coordinate Benches referred above, we allow the legal ground raised by the assessee and set aside the impugned order passed by the Ld. CIT (A). Accordingly, we direct the AO to delete the penalty levied u/s 271 (1) (c) of the Act. Assessment Year: 2013-14
Since, we have decided the legal ground raised by the assessee in its favour and allowed the appeal of the assessee, we do not consider it necessary to adjudicate the grounds of appeal raised on merits. In the result, appeal filed by the assessee for assessment year 2013-2014 is allowed.
Order pronounced on 18th May, 2020 under rule 34 (4) of the Income Tax Appellate Tribunal Rules, 1963. (G. MANJUNATHA) JUDICIAL MEMBER म ुंबई Mumbai; दिन ुंक Dated: 18/05/2020
Alindra, PS आदेश प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file.
आदेशानुसार/ BY ORDER, सत्य दपि प्रदि //// उि/सहायक िंजीकार (Dy./Asstt.