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Income Tax Appellate Tribunal, “A”
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
ORDER
PER DR.DIPAK P.RIPOTE, AM:
This appeal filed by the Assessee is directed against the order of ld.Commissioner of Income-tax(Appeals), Pune-10’s, order dated 06.11.2019for the Assessment Year 2008-09, involving proceedings under section 271(1)(c)of the Income Tax Act, 1961. The Assessee has raised the following grounds of appeal:
1. On the facts and in the circumstances of the case and in law The Learned Assessing Officer erred in levying the penalty of Rs.2,02,600/- by passing order u/s 271(1)(c) by disregarding the appellants contention.”
Brief facts of the case are that in the assessment order the Assessing Officer had disallowed following amounts:
A.Y.2008-09 Krishi Utpanna Bazar Sammittee Vs. ACIT, Circle-2, Solapur [A] -Wrong claim of Gratuity Rs.2,58,376/- -Wrong claim of Employer’s contribution of PF Rs.1,90,165/- -Wrong claim of depreciation Rs.1,47,527/- The AO levied Penalty u/s 271(1)(c) of the Act vide order dated 30/06/2011 for the impugned wrong claims.
No one appeared for the appellant assessee. The appeal is decided Ex Party with the help of the Ld.DR.
3.1. We have studied the records and heard the Ld.DR. On perusal of the Penalty Notice under section 274 rws 271(1)(c) of the Act dated 16/12/2010, it is observed that the Assessing Officer has not struck the inapplicable words. The Assessing Officer has not mentioned whether the notice is for concealment of particulars of income or for filling inaccurate particulars.
3.2. It has been held by Hon’ble Jurisdictional High Court in the case of Ganga Iron & Steel Trading Co. v/s Commissioner of Income Tax.[2022] 135 taxmann.com 244 (Bombay) order dated December 22, 2021 as under :
Quote “10. We find that the law as laid down by the Full Bench applies on all fours to the facts of the present case as in the show cause notice dated 12-2-2008, the Assistant Commissioner of Income-tax is not clear as to whether there was concealment of particulars of income or that the Assessee had furnished inaccurate particulars of income. We therefore find that issuance of such show cause notice without specifying as to whether the Assessee had concealed particulars of his income or had furnished inaccurate A.Y.2008-09 Krishi Utpanna Bazar Sammittee Vs. ACIT, Circle-2, Solapur [A] particulars of the same has resulted in vitiating the show cause notice. Heavy reliance was placed by the learned counsel for the Revenue on the decision in Mak Data (P.) Ltd. (supra) to urge that the penalty contemplated by section 271 (1) (c) of the said Act was in the nature of civil liability and mensrea was not essential therein. The decision in Dilip N. Shroff (supra) having been held as not laying down good law in Dharmendra Textile Processors Ltd. (supra), it was submitted that the show cause notice issued in the present proceedings was liable to be upheld. It may be noted that all the decisions relied upon by the learned counsel for the Revenue were considered by the Full Bench while answering the issues referred to it on reference. The Full Bench having considered these decisions and having answered the question as regards defect in the notice under section 271(1)(c) of the said Act resulting in vitiating the penalty proceedings, we find ourselves bound by the answers given by the Full Bench. It would not be permissible for us to disregard this aspect and take a different view of the matter. Accordingly substantial question of law no. III is answered by holding that since the show cause notice dated 12-2-2008 does not indicate whether there was concealment of particulars of income or furnishing of incorrect particulars of such income, the same would vitiate the penalty proceedings.” Unquote.
Respectfully following the Hon’ble jurisdictional High Court, we hold that the impugned Penalty Notice is defective and the defect is not curable. Hence the order us/ 271(1)(c) is void ab initio.