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Income Tax Appellate Tribunal, “H” Bench, Mumbai
Before: Shri Shamim Yahya & Shri Ravish Sood
O R D E R
PER RAVISH SOOD, JM
The present appeal filed by the assessee is directed against the order passed by the CIT(A)-28, Mumbai, dated 21.11.2017, which in turn arises from the order passed by the A.O under Sec. 271(1)(c), dated 05.08.2014 for A.Y. 2011-12. The assessee has assailed before us the levy of penalty under Sec. 271(1)(c), to the extent the same had been upheld by the CIT(A). Further, the assessee has also raised before us the following additional grounds of appeal: “1. In the facts and circumstances of the case and in law, the Ld. CIT(A) erred in confirming the levy of penalty u/s. 271(1 )(c) even when the penalty was initiated in the assessment order for „furnishing inaccurate particulars‟ but levied in the penalty order for „wilful concealment‟.
P a g e | M/s The Hindustan Co-op Bank ltd. Vs. Commissioner of Income Tax-28 2. In the facts and circumstances of the case and in law, the Ld. CIT(A) erred in confirming the levy of penalty u/s. 271(1)(c) even when the penalty notice u/s. 274, did not strike out the inapplicable limb of section 271(1 )(c).” As the assessee by raising the aforesaid additional grounds of appeal has sought an adjudication as regards the validity of jurisdiction assumed by the A.O for imposing penalty under Sec. 271(1)(c), which involves a legal issue based on the facts available on record, therefore, the same in the backdrop of the judgment of the Hon‟ble Supreme Court in the case of National Thermal Power Company Limited vs. CIT (1998) 229 ITR 383 (SC) is admitted.
2. Briefly stated, the assessee which is a co-operative bank had e- filed its return of income for A.Y. 2011-12 on 27.09.2011, declaring total income of Rs.62,32,742/-. The case of the assessee was selected for scrutiny assessment under Sec. 143(2) of the I.T. Act. In the course of the assessment proceedings the A.O inter alia made the following additions/disallowances :
Sr. No. Particular Amount 1. Addition building fund collected by the assessee Rs.8,93,697/- during the year. 2. Disallowance of excess depreciation. Rs.4,49,025/- 3. Disallowance of depreciation on computers. Rs.1,34,797/- The A.O while culminating the assessment also initiated penalty proceedings under Sec. 271(1)(c) for furnishing of inaccurate particulars of income. The assessee accepted the assessment framed by the A.O and did not carry the same any further in appeal before the CIT(A).
The A.O after framing the assessment initiated penalty proceedings under Sec. 271(1)(c) as regards the aforesaid additions /disallowances made in the hands of the assessee. The explanation advanced by the assessee to impress upon the A.O that no penalty under Sec.271(1)(c) in respect of the aforesaid additions/disallowances P a g e | M/s The Hindustan Co-op Bank ltd. Vs. Commissioner of Income Tax-28 was liable to be imposed, however, did not find favour with him. The A.O being of the view that the assessee had wilfully tried to conceal its income by furnishing inaccurate particulars imposed a penalty of Rs. 5,60,048/- under Sec.271(1)(c).
Aggrieved, the assessee carried the matter in appeal before the CIT(A). The CIT(A) observed that similar additions/disallowances were made in the case of the assessee for the immediately preceding year i.e A.Y. 2010-11. Further, it was noticed by him that the assessment for the preceding year was also accepted by the assessee and not carried any further in appeal. It was observed by the CIT(A) that penalty imposed under Sec.271(1)(c) in the aforesaid preceding year viz. A.Y. 2010-11 in respect of similar additions/disallowances was assailed by the assessee before his predecessor, who vide his order dated 22.02.2016 had partly allowed the appeal. On the basis of his aforesaid observations, the CIT(A) followed the view that was taken by his predecessor while disposing off the appeal of the assessee for A.Y. 2010-11, and observed as under :
“5. I have perused the appellate order in appeal No.IT-443 dated 22.02.2016.My Ld. Predecessor has considered levy of penalty on the following:- a) Entrance fees and Nominal Membership fees b) Building reserve fund account. c) Disallowance u/s. 14A d) Disallowance on account of excess depreciation e) Incorrect claim of carry forward depreciation f) Short accounting of commission income. The final finding of my predecessor on levy of penalty is as follows:- “5.7 To sum up, the penalty levied by the A.O on the additions towards Collection carried to Building fund (Rs.7,23,140/-). Disallowance of excess depreciation (Rs.5,00,647/-) and commission income under accounted (Rs.91,279/-) is confirmed and the penalty levied on entrance and nominal membership fees (Rs.5,38,588/-) disallowance u/S. 14A (Rs.60,43,365/-) and disallowance of incorrect brought forward depreciation of A.Y 2009-10 (Rs.2,88,998/-) is deleted. The A.O is directed to rework the tax sought to be evaded in terms of Expln 4 accordingly.
6. I find that the issue is cov ered in respect of entrance and nominal membership fees and incorrect brought forward P a g e | M/s The Hindustan Co-op Bank ltd. Vs. Commissioner of Income Tax-28 depreciation in favour of the appellant and it is covered against the appellant in respect of the building fund and depreciation unverified. Accordingly, the same decision is followed and the A.O is directed to re - compute the penalty in respect of building fund account. However, in regard to depreciation, relief was allowed because of the fact that quantum assessment of earlier year was pending. I find from present penalty order that in AY 2009-10, the quantum appeal too, on this issue has gone against the appellant. On count of other depreciation my predecessor has confirmed the penalty. Hence penalty on both counts of depreciation is confirmed.” As is discernible from the aforesaid observations, the CIT(A) following the view taken by his predecessor deleted the penalty that was imposed by the A.O as regards the addition of “Entrance Fees & Nominal Membership Fees” of Rs.3,89,308/-. However, the CIT(A) adopting the view taken by his predecessor upheld the penalty that was imposed as regards the remaining three issues viz. (i) addition of unutilized collections credited to the building fund (Rs.8,93,697/-); (ii) disallowance of excess depreciation (Rs.4,49,025/-); and (iii) disallowance of depreciation (Rs.1,34,797/-).
The assessee being aggrieved with the order of the CIT(A) to the extent he had upheld the penalty imposed by the A.O under Sec.271(1)(c), has carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee assailed the validity of the jurisdiction assumed by the A.O for imposing penalty under Sec. 271(1)(c) in the hands of the assessee. It was submitted by the ld. A.R that though the A.O in his assessment order had initiated the penalty proceedings under Sec. 271(1)(c) for “furnishing inaccurate particulars of income”, however, the same was thereafter imposed by him vide his penalty order u/s 271(1)(c) for “concealment of income”. Apart there from, it was submitted by him that the A.O had also failed to “strike off” the irrelevant default in the body of the “Show cause” notices (for short „SCN‟) dated 26.03.2013 and 21.03.2014. In order to buttress his aforesaid contention, the ld. A.R took us through the aforesaid notices. As regards the merits of the P a g e | M/s The Hindustan Co-op Bank ltd. Vs. Commissioner of Income Tax-28 case, it was submitted by the ld. A.R that the CIT(A) had upheld the penalty imposed on the assessee in context of the aforesaid additions/disallowances by relying on the order passed by his predecessor for the immediately preceding year viz. A.Y. 2010-11. It was averred by the ld. A.R that the order of the CIT(A) for A.Y. 2010-11 upholding the penalty imposed by the A.O was vacated by the ITAT, Mumbai bench “G”, Mumbai for want of jurisdiction on the part of the A.O, vide its order viz. Hindustan Cooperative Bank Ltd Vs. ACIT- 13(3), Mumbai (ITA No.2742/Mum /2016, dated 25.03.2019) (copy placed on record).
Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities. Insofar the contention of the counsel for the assessee that the A.O had initiated penalty proceedings for “furnishing of inaccurate particulars of income”, while for the same was imposed by him for “concealment of income”, it was submitted by the ld. D.R that the said contention so raised by him was misconceived and misplaced. The ld. D.R took us through the order passed by the A.O under Sec. 271(1)(c) and submitted that the penalty was imposed by the A.O for “concealing income by furnishing inaccurate particulars”.
We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record and the judicial pronouncements relied upon by them. Admittedly, the CIT(A) while upholding the penalty imposed by the A.O under Sec.271(1)(c) had merely acted upon and endorsed the view taken by his predecessor in the immediately preceding year viz. A.Y. 2010-11. Insofar the order passed by the CIT(A) upholding the penalty u/s 271(1)(c) for A.Y 2010-11 is concerned, we find that the same was vacated by the Tribunal on the ground of invalid P a g e | M/s The Hindustan Co-op Bank ltd. Vs. Commissioner of Income Tax-28 assumption of jurisdiction by the A.O for imposing penalty u/s 271(1)(c) in the hands of the assessee, vide its order viz. Hindustan Cooperative Bank Ltd. Vs. ACIT-13(3), Mumbai (ITA No.2742/Mum/2016, dated 25.03.2019). The Tribunal in its aforesaid order while vacating the penalty imposed by the A.O under Sec. 271(1)(c) had observed as under :
5. We have heard the rival submissions and perused the relevant materials on record. In the instant case, we find that in the assessment order dated 26.03.2013, the AO has initiated the penalty for filing inaccurate particulars of the income (para 11 of the order), whereas in the penalty order dated 30.09.2013, he concluded with levy of penalty for concealment of income. In CIT vs. Samson Perincherry (ITA No. 953, 1097, 1154 & 1226 of 2014), the Hon‟ble Bombay High Court held: “Therefore, the satisfaction of the Assessing Officer with regard to only one of 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.
In the case before us, we find that the A.O while framing the assessment had initiated penalty proceeding under Sec. 271(1)(c) for “furnishing inaccurate particulars of income”. However, the A.O had thereafter imposed penalty under Sec.271(1)(c), vide his order dated 05.08.2014 on the ground that “the assessee has wilfully tried to conceal income by furnishing inaccurate particulars”. In fact, as is discernible from order imposing penalty u/s. 271(1)(c), the A.O while imposing the penalty had specifically referred to “wilful concealment in terms of Explanation 1(B) of Sec.271(1)(c) of the I.T Act” in context of the aforementioned three additions/disallowances viz. (i) addition of unutilized collections credited to building fund (Rs. 8,93,697/-); (ii) disallowance of excess depreciation (Rs.4,49,025/-); and (iii) disallowance of depreciation (Rs.1,34,797/-). Apart there from, even at the time of quantifying the penalty under Sec. 271(1)(c) the A.O had clearly stated “concealed income on which penalty has to be levied”. In P a g e | M/s The Hindustan Co-op Bank ltd. Vs. Commissioner of Income Tax-28 the backdrop of our aforesaid observations, we are unable to persuade ourselves to subscribe to the contention advanced by the ld. D.R that the A.O had imposed penalty under Sec. 271(1)(c) for furnishing of inaccurate particulars of income by the assessee.
On the basis of our aforesaid deliberations, we are of the considered view that as the A.O had initiated penalty for “furnishing inaccurate particulars of income”, but thereafter had imposed the same vide his penalty order under Sec.271(1)(c) for “concealment of income”, therefore, the same cannot be sustained and is liable to be vacated. Our aforesaid view is fortified by the judgment of the Hon‟ble High Court of Bombay in the case of CIT Vs. Samson Perinchery (2017) 88 taxman.com 413 (Bom). In the aforementioned case the Hon‟ble High Court had observed that an order imposing penalty has to be made only on the ground on which penalty proceedings has been initiated, and it cannot be on fresh ground of which the assessee has no notice. Insofar the variance between the two defaults envisaged in Sec. 271(1)(c) viz. “concealment of Income” and “furnishing of inaccurate particulars” is concerned, we find that as observed by the Hon‟ble Apex Court in the case of T. Ashok Pai Vs. CIT (2007) 292 ITR 11 (SC), the said respective defaults are separate and distinct. On the basis of our aforesaid deliberations, we are of the considered view that now when the A.O in the case before us had initiated penalty proceedings under Sec. 271(1)(c) for “furnishing of inaccurate particular of income”, but had thereafter in all his wisdom imposed the same for “concealment of income”, therefore, the same in the backdrop of the aforesaid settled position of law cannot be sustained and is liable to be vacated.
In terms of our aforesaid observations, we delete the penalty of Rs. 5,60,048/- imposed by the A.O u/s 271(1)(c). The order of the