Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, DELHI BENCHES: ‘C’, NEW DELHI
Before: SHRI N.K.SAINI & SMT. BEENA A PILLAI
Department by : Sh. Subhash Verma, Sr.D.R. Assessee by : Sh. C.S. Anand, C.A. Date of Hearing : 11.09.2018 Date of Pronouncement: 19.09.2018 ORDER PER BENCH Present Appeals by revenue and the Cross Objections by assessees have been filed against order dated 06/02/15 passed by Ld. CIT (A)-25, for assessment years 2008-09 to 2010-11, on following grounds of appeal: ITA 2795/Del/15 A.Y.: 2008-09
1. The Learned CIT(A) has erred in law as well as on facts in deleting the penalty under section 271(1)(c) of the Income Tax Act, 1961amounting to Rs.29,85,330/-.
2.(a) The order of the Ld.CIT(A) is erroneous and not tenable in law and on facts.
(b) The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of hearing of the appeal.” CO No. 140/Del/2018
1. Whether the penalty order dt. 29.9.2014 based upon the vague/non specific notice dt. 26.3.2014 (wherein the “charge” as to whether the assessee had concealed the particulars of its income or furnished inaccurate particulars of such income) is not liable to be quashed. Without prejudice
2. Whether initiating penalty u/s 271(1)(c) on the ground of “furnishing inaccurate particulars of income”(as mentioned in the 2 DCIT vs. Sam India Builtwell (P) Ltd. with C.O.Nos. 140-142/Del/18 A.Ys 2008-09 – 2010-11 assessment order), and levying penalty u/s 271(1)(c) on the ground of “concealment of income”(as mentioned in the penalty order), is not bad in law. (A Y 2009-10) “1. The Learned CIT(A) has erred in law as well as on facts in deleting the penalty under section 271(1)(c) of the Income Tax Act, 1961amounting to Rs.35,34,460/-.
2.(a) The order of the Ld.CIT(A) is erroneous and not tenable in law and on facts.
(b) The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of hearing of the appeal.” CO No. 141/Del/2018
1. Whether the penalty order dt. 29.9.2014 based upon the vague/non specific notice dt. 26.3.2014 (wherein the “charge” as to whether the assessee had concealed the particulars of its income or furnished inaccurate particulars of such income) is not liable to be quashed. Without prejudice
2. Whether initiating penalty u/s 271(1)(c) on the ground of “furnishing inaccurate particulars of income”(as mentioned in the assessment order), and levying penalty u/s 271(1)(c) on the ground of “concealment of income”(as mentioned in the penalty order), is not bad in law. (A Y 2010-11)
The Learned CIT(A) has erred in law as well as on facts in deleting the penalty under section 271(1)(c) of the Income Tax Act, 1961amounting to Rs.59,75,000/-. -2797/Del/15 DCIT vs. Sam India Builtwell (P) Ltd. with C.O.Nos. 140-142/Del/18 A.Ys 2008-09 – 2010-11 2.(a) The order of the Ld.CIT(A) is erroneous and not tenable in law and on facts.
(b) The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of hearing of the appeal.”
C.O. No. 142/Del/2018 1. Whether the penalty order dt. 29.9.2014 based upon the vague/non specific notice dt. 26.3.2014 (wherein the “charge” as to whether the assessee had concealed the particulars of its income or furnished inaccurate particulars of such income) is not liable to be quashed. Without prejudice 2. Whether initiating penalty u/s 271(1)(c) on the ground of “furnishing inaccurate particulars of income”(as mentioned in the assessment order), and levying penalty u/s 271(1)(c) on the ground of “concealment of income”(as mentioned in the penalty order), is not bad in law.
Brief facts of the case are as under: Assessee is a civil contractor and had filed its return of income declaring a sum of Rs.7,23,70,291/- for Assessment Year 2008- 09; at Rs.7,46,21,889/-for Assessment Year 2009-10, and at a sum of Rs.8,18,41,383/- for A.Y. 2010-11 on 12/10/10. Assessment was completed under section 143 (3) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") by making a few disallowances for all the years under consideration. 2.1. Subsequently, a search and seizure was carried out on 15/06/11 at business and residential premises of assessee, along with SAM India group of cases. Subsequently notice under section 153A was issued, and thereafter notice under section 143 -2797/Del/15 DCIT vs. Sam India Builtwell (P) Ltd. with C.O.Nos. 140-142/Del/18 A.Ys 2008-09 – 2010-11 (2)/142 (1) of the Act, along with questionnaire was issued upon assessee. Assessee submitted various requisite details as called for. During assessment proceedings, assessee offered income on the basis of documents seized from premises, and Assessment was completed under section 143 (3) read with 153A of the Act, and income was assessed by making addition of such amount as declared in the return of income. Assessing Officer then initiated penalty proceedings for concealment of income. 2.2. Based upon initiation of penalty proceedings, Assessing Officer issued notice under section 271 (1) (c ) read with section 274 of the Act. Various submissions were filed by assessee and on considering the same Ld. A.O., levied 100% penalty on income sought to be evaded. 2.3. Aggrieved by penalty order, assessee preferred appeal before Ld.CIT (A) who deleted penalty levied by Ld.AO. 2.4. Aggrieved by the order of Ld. CIT (A), revenue is in appeal before us now.
It has been submitted that issue raised by revenue in all the three assessment years under consideration, are similar and identical and arises out of same order passed by Ld.CIT (A). Ld.AR submitted that assessee raised Cross Objection challenging legal issue regarding validity of imposition of penalty in the order passed under section 271 (1) (c) of the Act by Ld.AO. It has been submitted that legal ground raised
by assessee in Cross Objection, does not require any new facts to be investigated upon.
4. We have perused the grounds raised by assessee in Cross Objections, and are of the opinion that, it leads to the root of levy -2797/Del/15 DCIT vs. Sam India Builtwell (P) Ltd. with C.O.Nos. 140-142/Del/18 A.Ys 2008-09 – 2010-11 of penalty. Accordingly we are inclined to deal with grounds raised by assessee in Cross Objections for the years under consideration first.
5. Ld.Counsel submitted that in the body of assessment order passed under section 143 (3) read with 153 A of the Act, Assessing Officer held penalty to be leviable for “furnishing of inaccurate particulars of income”, however in penalty order passed, it is observed that liability on assessee has been cast for “concealment of income”. It is observed that while concluding penalty order, Assessing Officer held penalty to be levied on assessee for “concealment of income” in returns filed.
6. He submitted that in reply filed in response to notice issued to assessee against levy of penalty, assessee had categorically raised objection regarding charge, being unclear in assessment order itself. He referred to copy of reply placed at page 15-22 of paper book for Assessment Year 2008-09. Ld. Counsel submitted that identical reply was filed by assessee for Assessment Year 2009-10 and 2010-11, which has not been considered by Ld.AO while passing penalty order.
7. Ld. Sr.DR on the other hand submitted that, present case falls within the ambit of Explanation 5 A to section 271 (1) ( c) of the Act. He submitted that assessee surrendered income on the -2797/Del/15 DCIT vs. Sam India Builtwell (P) Ltd. with C.O.Nos. 140-142/Del/18 A.Ys 2008-09 – 2010-11 basis of documents seized during search and survey proceedings, which took place after due date of filing of returns for the relevant years under consideration. Ld.Sr.DR thus submitted that penalty has been rightly levied.
8. We have perused submissions advanced by both sides in light of records placed before us.
9. We have also analysed applicability of Explanation 5 A to section 271 (1) (c) of the Act to the facts of present case. In our considered opinion Assessing Officer has not initiated Explanation 5 A to section 271 (1) ( c) of the Act and, therefore, plea raised by Ld.Sr.DR cannot be appreciated at this stage for any of the assessment years under consideration.
10. Now coming to the contentions raised by Ld.Counsel, it is observed that admittedly, Assessing Officer in assessment order has initiated penalty proceedings for “filing of inaccurate particulars”, however, while passing penalty order Ld. AO expressed satisfaction regarding “concealment of income. From reply filed by assessee placed in paper books for relevant Assessment Years under consideration, it is discernible that assessee raised this objection before Ld.AO which has neither been considered nor been rectified while passing penalty orders. In our considered opinion Assessing Officer has failed in levying penalty on a specific charge being either “concealment of income” or “furnishing of inaccurate particulars”. Under such circumstances, we are of the considered opinion that penalty orders passed by Ld.AO deserves to be quashed and set-aside. -2797/Del/15 DCIT vs. Sam India Builtwell (P) Ltd. with C.O.Nos. 140-142/Del/18 A.Ys 2008-09 – 2010-11
11. As we have set aside and quashed the penalty order passed by Ld.AO, we do not see merit in the appeals of the Revenue.
12. In the result, Cross Objections filed by assessee on legal issue raised, stand allowed and appeals filed by revenue are dismissed as ‘infructuous’. Order pronounced in the Open Court on 19th September, 2018. Sd/- Sd/- (N.K.SAINI) (BEENA A PILLAI) ACCOUNTANTMEMBER JUDICIAL MEMBER Dt. 19th September, 2018 • Gmv