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Facts
The assessee challenged a penalty order under Section 271(1)(c) of the Income Tax Act, 1961, which was partly upheld by the CIT(A) for assessment year 2011-12. The original penalty was for concealment of income or furnishing inaccurate particulars.
Held
The Tribunal held that the penalty proceedings were initiated under a different provision (Section 271AAA) than the one under which the penalty was levied (Section 271(1)(c)). The show cause notice did not specify the exact limb of Section 271(1)(c) violated, prejudicing the assessee.
Key Issues
Whether the penalty order passed under Section 271(1)(c) is valid when the show cause notice was for a different section and lacked specific grounds?
Sections Cited
250, 271(1)(c), 271AAA
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PER: NARINDER KUMAR, JUDICIAL MEMBER Present appeal has been filed challenging order dated 18-09-2024 passed by ld. CIT(A), Jaipur-4, u/s 250 of the Income Tax Act, 1961 (for short ‘’ the Act’’), relating to assessment year 2011-12, as thereby appeal filed by the assessee challenging penalty order u/s 271(1)(c) of the Act has been partly allowed while modifying said penalty order passed by the AO only to the extent i.e. upholding ALOK MATHUR VS ITO,WARD 7(1), JAIPUR levy of penalty @ 10% of Rs.3,71,780/-only, i.e. undisclosed income as per Section 271AAA of the Act. Arguments heard. File perused. 2 Ld. AR for the appellant has referred to the assessment order as regards the quantum proceedings passed on 18-03-2014, relating to same assessment yeaer, and pointed out that in para 13 thereof, the AO observed that a show cause notice u/s 271AAA of the Act for undisclosed income i.e. pertaining to referral fee was going to be issued to the assessee, but, the AO ultimately passed penalty order u/s 271(1)(c) of the Act which is against the settled law, and as such, the penalty order deserves to be set aside, and similarly, the impugned order passed by ld CIT(A) also deserves to be set aside. 3 In the course of arguments, ld. DR for the Department admits as per the assessment order , the show cause notice proposed to be issued to the assessee was the one for violation of provisions of Section 271AAA and that penalty has been levied vide order dated 26-03-2018, under a different provision of law i.e. 271(1)(c) of the Act. 4 Ld. AR for the appellant has submitted alongwith written submission a copy of the notice issued by the AO for the purpose of imposition of penalty.
ALOK MATHUR VS ITO,WARD 7(1), JAIPUR Its perusal would reveal that penalty was sought to be imposed u/s 271(1)(c) of the Act on account of concealment of income and for furnishing inaccurate particulars of income. It is well settled that penalty proceedings are required to be initiated under the very provision of law, for which show cause notice is purported to have been issued to the assessee. In this regard, ld. AR for the appellant has referred to the written submission where he has cited case titled as CIT vs SSA’s Emerald Meadows (2016) 73 Taxmann.com 248 (SC). 5 Even otherwise, a perusal of Section 271(1)(c) would reveal that it speaks of violation of law, and provides for levy of penalty , due to concealment of particulars of income ‘or’ furnishing of inaccurate particulars of such income. While issuing notice under this provision of law, it has to be specified as to whether the assesee- appellant concealed the particulars of income ‘or’ his case is that furnishing of inaccurate particulars of income. However, while issuing the above referred to notice dated 20-03-2018, the Department sought for explanation of the assessee on both the grounds i.e. concealment of income ‘and’ for furnishing inaccurate particulars of income. In this way, the assessee can safely be said to have felt prejudiced for want of specification of particular limb of the provisions of Section 271(1)(c) of the Act, stated to have been violated.
ALOK MATHUR VS ITO,WARD 7(1), JAIPUR 6 In view of the above discussion, reasons and findings when initially show cause notice was proposed to be issued u/s 271AAA of the Act, show cause notice was subsequently issued under different provision of law, and therein specific limb of provision of Section 271(1)(c) of the Act was not mentioned i.e. in the show cause notice subsequently issued, the penalty order deserves to be set aside. Result 7. Consequently, this appeal is allowed and while setting aside the impugned order passed by ld. CIT(A), penalty order passed by the AO is also set aside.