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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश / ORDER
PER VIKAS AWASTHY, JM :
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-1, Aurangabad dated 14-03-2016 for the assessment year 2007-08 levying penalty u/s. 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”).
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The assessee has assailed the findings of Commissioner of Income Tax (Appeals) by raising following grounds/additional grounds : “1. The Learned Commissioner of Income Tax (Appeals), Aurangabad is not justified in initiating penalty proceedings u/s. 271 (1) (c) of the Income Tax Act 1961 @ 300% of alleged tax sought to be evaded which resulted in penalty of Rs.8,41,500/-, though the appellant has offered bonafide explanation and all the materials facts disclosed by him during assessment as well as appellate proceedings. 2. The Learned Commissioner of Income Tax (Appeals), Aurangabad has failed to appreciate the fact that the appellant has neither concealed income nor furnished inaccurate particulars of income, thus the action of the Hon.CI A) is blatant misuse of power. Therefore, Learned CIT(A) may be directed to delete the Penalty of Rs.8,41,500/-. 3. Such other orders be passed as may be deemed fit and proper. 4. The Appellant craves leave to add, amend, alter vary and/or withdraw any or all the above grounds of appeal.”
Additional Grounds
“(i) The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in levying the penalty u/s 271(1)(c) of the Income Tax Act. (ii) Since the Ld. Commissioner of Income Tax (Appeals) had not made the addition of Rs.10,00,000/- on account of excess stock of fertilizers, the Ld. Commissioner of Income Tax (Appeals) did not have the jurisdiction to initiate the penalty u/s 271(1)(c) of the Act in respect of the said addition of Rs.10,00,000/-. Consequently the Commissioner of Income Tax (Appeals) did not also have the jurisdiction to levy the penalty in respect of the said addition. (iii) Penalty has been initiated and levied by the Commissioner of Income Tax (Appeals) for the charge of concealing the income. This charge is inaccurate as the assessee has disclosed by way of the auditor's note, all the facts regarding declaration of income in respect of excess stock of fertilizer of Rs.10,00,000/-, by including it in sale of fertilizers. At worst, the assessee may be guilty of the charge of furnishing inaccurate particulars of income.”
Shri Hari Krishan appearing on behalf of the assessee submitted that the assessee is engaged in the business of trading in seeds, fertilizers,
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pesticides and handling, storage and transportation of fertilizers. A survey was conducted on the premises of the assessee on 28-06-2006 during which excess stock of fertilizers to the tune of Rs.10,00,000/- was found. The assessee filed its return of income for the assessment year 2007-08. Along with the return of income, the assessee filed audited accounts wherein undisclosed stock of fertilizers Rs.10,00,000/- was also disclosed. Thus, the assessee did not offer any separate income in respect of excess stock of fertilizers in the return. The Assessing Officer completed the assessment u/s. 143(3) of the Act vide order dated 26-11-2009 without making any separate addition qua excess stock of fertilizers. The Commissioner of Income Tax invoked revisionary powers u/s. 263 of the Act and directed the Assessing Officer to re-adjudicate the issue with respect to excess stock of fertilizer amounting to Rs.10,00,000/-.
3.1 Consequent to revision order passed by the Commissioner of Income Tax u/s. 263 of the Act, the Assessing Officer passed fresh assessment order on 30-10-2012 making addition of Rs.10,00,000/- on account of excess stock of fertilizers offered during the survey but not separately offered to tax in the return of income. However, the Assessing Officer did not initiate penalty u/s. 271(1)(c) of the Act in respect of addition of Rs.10,00,000/-. The Commissioner of Income Tax (Appeals) confirmed the addition in First Appellate proceedings and also initiated penalty proceedings u/s. 271(1)(c) of the Act for concealment of income in respect of addition of Rs.10,00,000/-. Thereafter, the Commissioner of Income Tax (Appeals) vide order dated 14-03-2016 levied penalty of Rs.8,41,500/- u/s. 271(1)(c) of the Act at the rate of 300% of the tax bought to be evaded, on the charge of concealment of income.
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3.2 The ld. AR submitted that the Commissioner of Income Tax (Appeals) has wrongly assumed jurisdiction for initiating penalty u/s. 271(1)(c) of the Act. The addition of Rs.10,00,000/- was made by the Assessing Officer in assessment proceedings. Therefore, it was the Assessing Officer who could have initiated penalty proceedings u/s. 271(1)(c) and not the Commissioner of Income Tax (Appeals). The ld. AR in support of his submissions placed reliance on the decision rendered in the case of Ajit Ramchandra Jadhav Vs. Assistant Commissioner of Income Tax reported as 178 TTJ 204 (Pune-Trib.).
3.3 The ld. AR submitted that without prejudice to his primary submissions that no penalty proceedings could have been initiated by the Commissioner of Income Tax (Appeals) on the addition made by Assessing Officer, the Commissioner of Income Tax (Appeals) has erred in initiating penalty u/s. 271(1)(c) on the charge of concealment. The Commissioner of Income Tax (Appeals) has failed to appreciate the fact that Rs.10,00,000/- on account of excess stock of fertilizers has been considered by the assessee while finalizing the accounts by way of sale of excess stock of fertilizers. The amount has been disclosed in trading account of fertilizers and thus no separate income on this account was offered to tax by the assessee. The auditor’s note to the audited accounts specifically mentions that the fertilizers stock of Rs.10,00,000/- was sold and included in the respective trading accounts and further the unaccounted sale of tax free goods also included in the trading account as the income of the assessee. Thus, the charge for concealing the particulars of income is not sustainable. At the worst the assessee may be held guilty on the charge of furnishing inaccurate particulars of income. The Commissioner of Income
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Tax (Appeals) has wrongly invoked the charge of concealment of income while initiating/ levy of penalty u/s. 271(1)(c) of the Act.
On the other hand Shri Mukesh Jha representing the Department vehemently defended the action of Commissioner of Income Tax (Appeals) in levy of penalty. The ld. DR placing reliance on the decision of Hon’ble Karnataka High Court in the case of Commissioner of Income Tax Vs. Manjunatha Cotton & Ginning Factory reported as 359 ITR 565 submitted that the penalty has been initiated by the Commissioner of Income Tax (Appeals) and has been levied by the Commissioner of Income Tax (Appeals). It is not a case where the penalty has been initiated by Assessing Officer and levied by the Commissioner of Income Tax (Appeals) or vice-versa. The ld. DR supporting the order of Commissioner of Income Tax (Appeals) prayed for dismissing the appeal of assessee.
We have heard the submissions made by representatives of rival sides and have perused the orders of authorities below. The assessee in appeal has raised additional ground assailing levy of penalty by the Commissioner of Income Tax (Appeals) on addition of Rs.10,00,000/- made by the Assessing Officer. The Assessing Officer in original assessment proceedings did not make any addition on account of undisclosed stock of fertilizers amounting to Rs.10,00,000/-. It was in consequent to the order of Commissioner of Income Tax u/s. 263 of the Act, that the Assessing Officer made addition of Rs.10,00,000/- on account of undisclosed stock of fertilizers. While making addition the Assessing Officer did not record satisfaction for initiating penalty u/s. 271(1)(c) of the Act. The Commissioner of Income Tax (Appeals) in First Appellate proceedings against assessment while deliberating on the addition of Rs.10,00,000/-
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qua undisclosed stock of fertilizers recorded his satisfaction for levy of penalty u/s. 271(1)(c) of the Act. Subsequently, in the appeal arising from penalty order, the Commissioner of Income Tax (Appeals) levied penalty of 300% of the tax sought to be evaded on account of aforesaid addition for concealing the income.
As per the provisions of section 271(1), the penalty under clause (c) can be imposed by the officer who has recorded satisfaction. Addition/disallowance of income in assessment proceedings is sine-qua- non for initiating penalty proceedings u/s. 271(1)(c) of the Act. Thus, recording of satisfaction for initiating penalty u/s. 271(1)(c) is directly linked to the addition/disallowance. As corollary to the above, satisfaction for levy of penalty should be of the officer who has made addition/disallowance. In other words, if the addition is made by the Assessing Officer the satisfaction for levy of penalty has to be recorded by the Assessing Officer and consequent order levying penalty is also to be passed by the Assessing Officer. Similarly, if the addition is made by the Commissioner of Income Tax (Appeals), it is the satisfaction of Commissioner of Income Tax (Appeals) which is material for initiating penalty proceedings u/s. 271(1)(c) of the Act on the said addition. Thus, as a consequent to the addition and recording of satisfaction for levy of penalty u/s. 271(1)(c), the order levying penalty u/s. 271(1)(c) on such addition has to be made by the Commissioner of Income Tax (Appeals). To dispel any confusion, here we would like to reiterate the well settled law that all additions would not result in levy of penalty.
In the instant case the recording of satisfaction by Commissioner of Income Tax (Appeals) for levy of penalty u/s. 271(1)(c) on the addition
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made by the Assessing Officer is contrary to the intent of Legislature as is emanating from the reading of provisions of section 271(1) of the Act. Sub- section (1) of section 271 states : “If the Assessing Officer or the Commissioner (Appeals) or the Principal Commissioner or Commissioner in the course of any proceedings under this Act, is satisfied ………”
The satisfaction for levy of penalty originates from the addition made. The addition and the satisfaction cannot be dissected between two authorities. The satisfaction for initiating penalty u/s. 271(1)(c) qua the addition/disallowance has to be of the officer who has made the addition.
Our this view is supported by the decision rendered in the case of Ajit Ramchandra Jadhav Vs. Assistant Commissioner of Income Tax (supra). In the aforesaid case, addition was made by Assessing Officer but no satisfaction for initiate penalty proceedings u/s. 271(1)(c) was recorded. The Commissioner of Income Tax (Appeals) in First Appellate proceedings u/s. 271(1)(c) recorded satisfaction and levied penalty on the addition made by Assessing Officer. The Tribunal held that the Commissioner of Income Tax (Appeals) has no jurisdiction to levy penalty u/s. 271(1)(c) on such addition. The relevant extract of the findings of the Tribunal are as under : “21. ………. The initiation of the penalty proceedings has to be during the course of assessment, which admittedly, is a separate and distinct proceeding. Thereafter, the requirement of the Act is to issue show cause notice to the assessee as to why penalty for concealment should not be levied against the assessee. The provisions of section 271(1)(c) of the Act is code in itself and the same have to be applied for deciding the whether the assessee has concealed particulars of its income or furnished inaccurate particulars of income. But before applying the provisions of section 271(1) of the Act, the satisfaction must be recorded by the person completing assessment in the hands of assessee as to the concealment of income or furnishing of inaccurate particulars of income by the person who is being assessed by the said officer. Undoubtedly, the jurisdiction to assess a
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person lies with the Assessing Officer and also with the CIT(A) or the Commissioner in his revision jurisdiction, but the exercise of power to record satisfaction that the person has concealed its income or furnished inaccurate particulars of income and thereafter, initiate the penalty proceedings against such person, has to be exercised in assessment proceeding itself i.e. during the completion of the assessment of the income in the hands of assessee. The power which has been enshrined on the CIT(A) or the Commissioner, in the course of any proceedings, is in relation to the assessment proceedings being carried on by the said person. There are two stages before the penalty for concealment can be levied against any person. The first stage is the initiation of proceedings which has to be done during the course of assessment proceedings, which admittedly is a separate stage. After such satisfaction has been recorded, then the assessee is to be show caused as to why penalty for concealment should not be levied and this power is enshrined in section 271(1) of the Act, under which, before imposing any penalty, show cause notice is again to be given to the assessee within time frame provided under the Act in section 275 of the Act.”
The Tribunal after considering the decision of Hon’ble Karnataka High Court in the case of Commissioner of Income Tax Vs. Manjunatha Cotton & Ginning Factory (supra) finally concluded by holding : “The order initiating the penalty proceedings has to be a different order and has to be passed by the person, who has made the addition/assessment in the hands of the assessee.”
In the present case as pointed earlier, the Commissioner of Income Tax (Appeals) has recorded satisfaction for initiation of penalty u/s. 271(1)(c) in respect of addition made by Assessing Officer. In our considered view the recording of satisfaction by the Commissioner of Income Tax (Appeals) on the addition made by Assessing Officer is without jurisdiction and hence, invalid. Thus, the subsequent proceedings arising there from are vitiated, hence liable to be set aside. In view of our above findings the assessee has to succeeds on the additional ground raised. Accordingly, the impugned order is set aside and the additional ground raised by the assessee is allowed.
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Since, the appeal of assessee has been allowed on the legal issue raised by way of additional ground of appeal, the grounds raised by the assessee in appeal have become academic and hence we are not deliberating on the same.
In the result, the appeal of assessee is allowed in the terms aforesaid.
Order pronounced on Monday, the 17th day of September, 2018.
Sd/- Sd/- (डी. करुणाकरा राव/D. Karunakara Rao) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 17th September, 2018 RK आदेश की प्रयिलऱवऩ अग्रेवषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A)-1, Aurangabad 3. 4. The Pr. Commissioner of Income Tax-1, Aurangabad ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, “बी” बेंच, 5. ऩुणे / DR, ITAT, “B” Bench, Pune. गाडड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रयत // True Copy// आदेशानुसार / BY ORDER,
यनजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune