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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI G. S. PANNU, VP & SHRI AMARJIT SINGH, JM
O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 29.07.2015 passed by the Commissioner of Income Tax (Appeals)-13, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y. 2006-07 wherein the penalty levied by the AO has been ordered to be confirm.
The assessee has raised the following grounds: - “
1 The Ld. CIT(A)-13 Mumbai erred in confirming the penalty of Rs.16,55,309/- levied by the learned u/s 271(1)(c) without A.Y. 2006-07 appreciating the fact that the quantum appeal of your appellant for this year has been admitted by the Bombay High Court.
2. Your appellant submits that your appellant has submitted various High Court judgments and Tribunal judgments. According to which if the quantum appeal has been admitted by the High Court, no penalty is leviable. On the ground, the ld. CIT(A) ought to have deleted the penalty on the ground that once the quantum appeal is admitted in the High Court, no penalty u/s 271(1)(c) could be levied. 1.2 Your appellant therefore, submits that the penalty of Rs.16,55,309/- levied u/s 271(1)(c) be deleted.” The brief facts of the case are that the assessee filed its return of 3. income assessing total income to the tune of Rs.Nil under the normal provision of the Act and Book profit at loss(-) Rs.61,13,285/-. The return was processed u/s 143(1) of the Act. Thereafter, the case was selected for scrutiny and assessment order u/s 143(3) of the Act was passed on 24.11.2008. On verification, it was found that the assessee company computed the short term capital gain at Rs.87,58,837/- and after current business loss of Rs.32,41,142/-, the balance short term capital gain of Rs.55,17,695/- was set off against brought forward business losses. Since the set off brought forward business loss against short term capital gain was not in accordance with the provision of the Act, 1961, therefore, the notice was given to the assessee and after the reply of the assessee, the brought forward loss was not found eligible for set for set off against short term capital gain to the tune of Rs.55,17,695/-. However, the current business loss to the tune of Rs.32,41,142/- was allowed to be set off against STCG hence the amount of Rs.55,17,695/- was added to the income of the ITA. No.5012/M/2015 A.Y. 2006-07 assessee. The income of the assessee was assessed to the tune of Rs.16,55,309/- and computation of book profit u/s 115JB of the Act was assessed to the tune of Rs.3,74,86,715/-. The penalty proceeding was initiated. The notice was given. Thereafter, the AO levied the penalty to the tune of Rs.16,55,309/- i.e. 100% of the income tax to be evaded of Rs.55,17,695/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who dismissed the appeal of the assessee, therefore, the assessee has filed the present appeal before us.
We have heard the argument advanced by the Ld. Representative of the parties and perused the record. The Ld. Representative of the assessee has argued that the appeal of the assessee on quantum has been admitted by the Hon’ble High Court in view of of 2012 dated 10.03.2014, therefore, in the said circumstances, the penalty is not leviable in view of the law settled in CIT Vs. M/s. Nayan Builders and Developers ITA. No. 415 of 2012. It is also argued that the assessee claimed the set off STCG against brought forward loss which was not allowable if any so the penalty is not leviable in view of the law settled in CIT Vs. Reliance petroproducts (P.) Ltd. (2010) 189 Taxman 322 (SC). It is also specifically argued that the notice issued to the assessee nowhere speaks about any particular charge as nothing was tick off in the said notice, therefore, in the said circumstances, the notice is not justifiable hence the penalty is not liable to be sustainable in view of the law ITA. No.5012/M/2015 A.Y. 2006-07 settled in CIT Vs. SSA Emerald Meadows SLP © No. 11485/2016 SC, CIT VS. SSA Emerald Meadows (ITA. No. 380 of 2015 Kar. High Court, CIT Vs. Shri Samson Perincherry (ITXA No. 1154 of 2014 Bom. High Court & Extract of CIT Vs. Manjunatha Cotton & Ginning Factory 35 taxmann.com 250 Kar. High Court. On the other hand, the ld. Representative of the Department has refuted the said contentions. The copy of order of the Hon’ble High Court dated 10.03.2014 in of 2012 in the case CIT Vs. M/s. Nayan Builders and Developers ITA. No. 415 of 2012 is on the file in which the appeal of the assessee has been admitted by the Hon’ble Bombay High Court being substantial question of law involved. Undoubtedly, in the said circumstances, the penalty is not liable to be sustainable in view of the law settled in CIT Vs. M/s. Nayan Builders and Developers ITA. No. 415 of 2012. So far as the claim of the assessee regarding the set off of brought forward losses against short term capital gain is concerned, the same is not allowable. In brief, the assessee nowhere furnished the inaccurate particulars nor concealed the particulars of income. If the assessee raised wrong claim which was not allowable in accordance with law therefore, in the said circumstances no penalty is leviable in view of the law settled in CIT Vs. Reliance petroproducts (P.) Ltd. (2010) 189 Taxman 322 (SC) . On account of legal issues, it is not in dispute that the AO nowhere alleged any specific charge in the notice issued to the assessee. No charge was tick off in the notice. It is not in ITA. No.5012/M/2015 A.Y. 2006-07 dispute that the penalty u/s 271(c) of the Act is leviable on account of the concealment of particular of income and on account of furnishing the inaccurate particulars of income. Both the limbs have different connotations. In this regard, the Hon’ble Supreme Court as appreciated the distinction between both the limb in the case Dilip N. Shroff 161 taxman 218 (SC). As per the record the assessment order speaks about levying the penalty on account of furnishing the inaccurate particulars of income and concealment of particulars income but the notice nowhere specify any limb to levy the penalty. The notice is not justifiable in view of the law settled by the Bombay High Court in the case of CIT-11 Vs. Samson Perinchery and the order of the ITAT, Mumbai Bench. At the time of argument, the Ld. Representative of the assessee has also placed reliance upon the finding of the Hon’ble ITAT in ITA. No. 2555/M/2012 titled as Meherjee Cassinath Holdings P. Ltd. Vs. ACIT, Circle-4(2). The relevant para is hereby reproduced below: - “8. We have carefully considered the rival submissions. Sec. 271(1)(c) of the Act empowers the Assessing Officer to impose penalty to the extent specified if, in the course of any proceedings under the Act, he is satisfied that any person has concealed the particulars of his income or furnished inaccurate particulars of such income. In other words, what Sec. 271(1)(c) of the Act postulates is that the penalty can be levied on the existence of any of the two situations, namely, for concealing the particulars of income or for furnishing inaccurate particulars of income. Therefore, it is obvious from the phraseology of Sec. 271(1)(c) of the Act that the imposition of penalty is invited only when the conditions prescribed u/s 271(1)(c) of the Act exist. It is also a well accepted proposition that ‘concealment of the particulars of A.Y. 2006-07 income’ and ‘furnishing of inaccurate particulars of income’ referred to in Sec. 271(1)(c) of the Act denote different connotations. In fact, this distinction has been appreciated even at the level of Hon'ble Supreme Court not only in the case of Dilip N. Shroff (supra) but also in the case of T.Ashok Pai, 292 ITR 11 (SC). Therefore, if the two expressions, namely ‘concealment of the particulars of income’ and ‘furnishing of inaccurate particulars of income’ have different connotations, it is imperative for the assessee to be made aware as to which of the two is being put against him for the purpose of levy of penalty u/s 271(1)(c) of the Act, so that the assessee can defend accordingly. It is in this background that one has to appreciate the preliminary plea of assessee, which is based on the manner in which the notice u/s 274 r.w.s. 271(1)(c) of the Act dated 10.12.2010 has been issued to the assessee-company. A copy of the said notice has been placed on record and the learned representative canvassed that the same has been issued by the Assessing Officer in a standard proforma, without striking out the irrelevant clause. In other words, the notice refers to both the limbs of Sec. 271(1)(c) of the Act, namely concealment of the particulars of income as well as furnishing of inaccurate particulars of income. Quite clearly, non-striking-off of the irrelevant limb in the said notice does not convey to the assessee as to which of the two charges it has to respond. The aforesaid infirmity in the notice has been sought to be demonstrated as a reflection of non-application of mind by the Assessing Officer, and in support, reference has been made to the following specific discussion in the order of Hon'ble Supreme Court in the case of Dilip N. Shroff (supra):- “83. It is of some significance that in the standard proforma used by the Assessing Officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not been done. Thus, the Assessing Officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars. Even before us, the learned Additional Solicitor General while placing the order of assessment laid emphasis that he had dealt with both the situations.
ITA. No.5012/M/2015 A.Y. 2006-07
The impugned order, therefore, suffers from non- application of mind. It was also bound to comply with the principles of natural justice. (See Malabar Industrial Co. Ltd. v. CIT [2000] 2 SCC 718]” 9. Factually speaking, the aforesaid plea of assessee is borne out of record and having regard to the parity of reasoning laid down by the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra), the notice in the instant case does suffer from the vice of non-application of mind by the Assessing Officer. In fact, a similar proposition was also enunciated by the Hon'ble Karnataka High Court in the case of M/s. SSA’s Emerald Meadows (supra) and against such a judgment, the Special Leave Petition filed by the Revenue has since been dismissed by the Hon'ble Supreme Court vide order dated 5.8.2016, a copy of which is also placed on record. 10. In fact, at the time of hearing, the ld. CIT-DR has not disputed the factual matrix, but sought to point out that there is due application of mind by the Assessing Officer which can be demonstrated from the discussion in the assessment order, wherein after discussing the reasons for the disallowance, he has recorded a satisfaction that penalty proceedings are initiated u/s 271(1)(c) of the Act for furnishing of inaccurate particulars of income. In our considered opinion, the attempt of the ld. CIT-DR to demonstrate application of mind by the Assessing Officer is no defence inasmuch as the Hon'ble Supreme Court has approved the factum of non-striking off of the irrelevant clause in the notice as reflective of non-application of mind by the Assessing Officer. Since the factual matrix in the present case conforms to the proposition laid down by the Hon'ble Supreme Court, we proceed to reject the arguments advanced by the ld. CIT-DR based on the observations of the Assessing Officer in the assessment order. Further, it is also noticeable that such proposition has been considered by the Hon'ble Bombay High Court also in the case of Shri Samson Perinchery, 953, 1097 & 1126 of 2014 dated 5.1.2017 (supra) and the decision of the Tribunal holding levy of penalty in such circumstances being bad, has been approved.
ITA. No.5012/M/2015 A.Y. 2006-07
Apart from the aforesaid, the ld. CIT-DR made an argument based on the decision of the Hon'ble Bombay High Court in the case of Smt. Kaushalya & Others, 216 ITR 660 (Bom.) to canvass support for his plea that non-striking off of the irrelevant portion of notice would not invalidate the imposition of penalty u/s 271(1)(c) of the Act. We have carefully considered the said argument set-up by the ld. CIT-DR and find that a similar issue had come up before our coordinate Bench in the case of Dr. Sarita Milind Davare (supra). Our coordinate Bench, after considering the judgment of the Hon'ble Bombay High Court in the case of Smt. Kaushalya & Ors., (supra) as also the judgments of the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra) and Dharmendra Textile Processors, 306 ITR 277 (SC) deduced as under :- “12. A combined reading of the decision rendered by Hon’ble Bombay High Court in the case of Smt. B Kaushalya and Others (supra) and the decision rendered by Hon’ble Supreme Court in the case of Dilip N Shroff (supra) would make it clear that there should be application of mind on the part of the AO at the time of issuing notice. In the case of Lakhdir Lalji (supra), the AO issued notice u/s 274 for concealment of particulars of income but levied penalty for furnishing inaccurate particulars of income. The Hon’ble Gujarat High Court quashed the penalty since the basis for the penalty proceedings disappeared when it was held that there was no suppression of income. The Hon’ble Kerala High Court has struck down the penalty imposed in the case of N.N.Subramania Iyer Vs. Union of India (supra), when there is no indication in the notice for what contravention the petitioner was called upon to show cause why a penalty should not be imposed. In the instant case, the AO did not specify the charge for which penalty proceedings were initiated and further he has issued a notice meant for calling the assessee to furnish the return of income. Hence, in the instant case, the assessing officer did not specify the charge for which the penalty proceedings were initiated and also issued an incorrect notice. Both the acts of the AO, in our view, clearly show that the AO did not apply his mind when he issued notice to the assessee and he was not sure as to what purpose the notice was issued. The Hon’ble Bombay High Court has discussed about non-application of mind in the case of Kaushalya (supra) and observed as under:-
ITA. No.5012/M/2015 A.Y. 2006-07 “....The notice clearly demonstrated non-application of mind on the part of the Inspecting Assistant Commissioner. The vagueness and ambiguity in the notice had also prejudiced the right of reasonable opportunity of the assessee since he did not know what exact charge he had to face. In this back ground, quashing of the penalty proceedings for the assessment year 1967-68 seems to be fully justified.” In the instant case also, we are of the view that the AO has issued a notice, that too incorrect one, in a routine manner. Further the notice did not specify the charge for which the penalty notice was issued. Hence, in our view, the AO has failed to apply his mind at the time of issuing penalty notice to the assessee.”
The aforesaid discussion clearly brings out as to the reasons why the parity of reasoning laid down by the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra) is to prevail. Following the decision of our coordinate Bench in the case of Dr. Sarita Milind Davare (supra), we hereby reject the aforesaid argument of the ld. CIT-DR.
Apart from the aforesaid discussion, we may also refer to the one more seminal feature of this case which would demonstrate the importance of non-striking off of irrelevant clause in the notice by the Assessing Officer. As noted earlier, in the assessment order dated 10.12.2010 the Assessing Officer records that the penalty proceedings u/s 271(1)(c) of the Act are to be initiated for furnishing of inaccurate particulars of income. However, in the notice issued u/s 274 r.w.s. 271(1)(c) of the Act of even date, both the limbs of Sec. 271(1)(c) of the Act are reproduced in the proforma notice and the irrelevant clause has not been struck-off. Quite clearly, the observation of the Assessing Officer in the assessment order and non-striking off of the irrelevant clause in the notice clearly brings out the diffidence on the part of Assessing Officer and there is no clear and crystallised charge being conveyed to the assessee u/s 271(1)(c), which has to be met by him. As noted by the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra), the quasi-criminal proceedings u/s 271(1)(c) of the Act ought to comply with the principles of natural justice, and in the present case, considering the observations of the Assessing A.Y. 2006-07 Officer in the assessment order alongside his action of non-striking off of the irrelevant clause in the notice shows that the charge being made against the assessee qua Sec. 271(1)(c) of the Act is not firm and, therefore, the proceedings suffer from non- compliance with principles of natural justice inasmuch as the Assessing Officer is himself unsure and assessee is not made aware as to which of the two limbs of Sec. 271(1)(c) of the Act he has to respond.
Therefore, in view of the aforesaid discussion, in our view, the notice issued by the Assessing Officer u/s 274 r.w.s. 271(1)(c) of the Act dated 10.12.2010 is untenable as it suffers from the vice of non-application of mind having regard to the ratio of the judgment of the Hon'ble Supreme Court in the case of Dilip N. Shroff (supra) as well as the judgment of the Hon'ble Bombay High Court in the case of Shri Samson Perinchery (supra). Thus, on this count itself the penalty imposed u/s 271(1)(c) of the Act is liable to be deleted. We hold so. Since the penalty has been deleted on the preliminary point, the other arguments raised by the appellant are not being dealt with.”
In view of the above said finding, we are of the view that the penalty is not liable to be sustainable in the eyes of law, therefore, we set aside the finding of the CIT(A) on these issues and delete the penalty.