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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 is an appeal filed by the Assessee directed against the order of ld.Commissioner of Income Tax(Appeals)-1, Pune dated 24.04.2019 for the A.Y.2009-10.The Assessee has raised the following grounds of appeal:
1. On the facts and in the circumstances of the case and in law Ld. Commissioner of Income Tax (Appeals)-1, Pune erred in passing an ex-parte order without appreciating the fact that due to valid and sufficient reasons your Appellant could not attend the hearing and order is passed without considering the merit of the case your Appellant prays for set aside of the matter to the CIT (Appeals) in the interest of principal of natural justice.
A.Y. 2009-10 Lt. Col. Apar Krishnatray Vs. ITO, Ward-4(2), GHQ Pune (A)
2. On the facts and in the circumstances of the case and in law the learned A.O erred in levying the penalty of Rs.6,85,900/- by invoking provision of u/s 271(1)(c) by disregarding appellants contention, further the action is invalid for the reason that Learned AO has not specified the correct limb for levy of penalty.
The appellant craves for to leave, add, alter, modify, delete above ground of appeal before or at the time hearing, in the interest of natural justice.”
Brief facts of the case are that the Penalty U/s 271(1)(C) of the Act has been levied against the assessee for A.Y.2009-10. The Assessee filed an appeal before Commissioner of Income- tax(Appeals), who dismissed the appeal for non-attendance.
Aggrieved by the order of the ld.CIT(A), THE appellant assessee filed an appeal before this Tribunal. At the time of hearing before the Bench, No one attended for the hearing on behalf of the appellant assessee. The Ld.Departmental Representative(ld.DR) for the Revenue took us through the Penalty Order and Copy of Notice u/s.271(1)(C) of the Act.
The only issue is levy of Penalty of Rs.6,85,900/- u/s.271(1)(C) of the Act. On perusal of the notice u/s 271(1)(c) dated 30/12/2011 issued by the ITO, Ward-4(2), GHQ, it is observed that the ITO has not struck the appropriate words i.e. Concealed the particulars of Income or furnished Inaccurate particulars. In the assessment order A.Y. 2009-10 Lt. Col. Apar Krishnatray Vs. ITO, Ward-4(2), GHQ Pune (A) there is no mention whether the penalty has been initiated for filling inaccurate particulars of Income or for concealment of Income.
4.1 The Hon’ble Bombay High Court has held in the case of Ganga Iron & Steel Trading Co. v/s Commissioner of Income Tax. [2022] 135 taxmann.com 244 (Bombay) order dated 22.12.2021 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 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 mens rea 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 A.Y. 2009-10 Lt. Col. Apar Krishnatray Vs. ITO, Ward-4(2), GHQ Pune (A) 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.
4.2 In the case under consideration also the ITO has not struck the appropriate words in the penalty notice. And also as mentioned in earlier para, in the assessment order, the ITO has not mentioned whether the penalty is initiated for concealment or filling inaccurate particulars. Therefore, respectfully following the Hon’ble jurisdictional High Court’s order, it is held that the penalty u/s.271(1)(c) of the Act, is not maintainable. Hence, the Assessing Officer is directed to delete the penalty under section 271(1)(c) of the Act, accordingly, grounds of appeal raised by the assessee are allowed.