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Facts
The assessee, an individual operating a dry fruit trading concern, was subjected to a search and seizure operation in March 2017. Following this, the Assessing Officer (AO) completed an assessment for A.Y. 2017-18, making substantial additions to income for alleged undisclosed sales, commission, and 'kacha bills'. The CIT(A) partially allowed the assessment appeal, restricting the additions, but subsequently dismissed the assessee's appeal against a penalty of Rs. 43,77,932 levied by the AO under Section 271AAB(1A) of the Income Tax Act, 1961.
Held
The Income Tax Appellate Tribunal (ITAT) ruled that the penalty notices issued by the AO under Section 271AAB read with Section 274 were defective and invalid. The Tribunal emphasized that the notices were vague, failing to specify the precise clause of Section 271AAB (10%, 20%, or 30% penalty) under which the penalty was proposed, thereby denying the assessee a reasonable opportunity to respond. Relying on precedents from the Madras High Court and Jaipur ITAT, the Tribunal concluded that penalty proceedings are independent of assessment proceedings and a defective notice violates principles of natural justice, leading to the quashing of the penalty.
Key Issues
Whether the penalty order passed under Section 271AAB(1A) of the Income Tax Act, 1961 is valid when the underlying show cause notice issued by the Assessing Officer is vague and does not specify the particular grounds or clause for penalty imposition, thereby violating principles of natural justice.
Sections Cited
Section 271AAB, Section 271AAB(1A), Section 132, Section 143(3), Section 274, Section 271AAB(3), Section 275, Section 292BB, Section 271(1)(c), Section 153A, Section 139(1)
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Income Tax Appellate Tribunal, DELHI BENCH ‘H’, NEW DELHI
Before: SH. S. RIFAUR RAHMAN & SH. SUDHIR KUMAR
Date of hearing: 11/09/2024 Date of Pronouncement: 28/10/2024 ORDER
PER SUDHIR KUMAR, JM:
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals), Delhi, [hereinafter referred to as “CIT(A)”], vide order dated 07.12.2023 pertaining to A.Y. 2017-18 and arises out of the assessment order dated 22-06-2021 passed by the Assessing Officer under Section 271AAB(1A) of the Income Tax Act, 1961 [hereinafter referred as ‘the Act’].
The assessee has raised the following grounds of appeal :-
1. That on the facts and in the circumstances of the case and in law, the order dated 22.00.2021 passed by the assessing officer levying penalty of Rs.43,77,932 under section TAABLM of the Income Tas Act, 1961 (the Act is without jurisdiction, had in law
2. That the CITA) to appreciate that the notice issued by the assessing officer under section 271AAB of the Act was invalid, without jurisdiction and bad in law as it did not do not specify grounds or the clause under which penalty imposed by the assessing officer.
3. That the CIT(A) and assessing officer faded to appreciate that levy of penalty under section 271AAB(1A) of the Act is not automatic but only directory in nature and since significant amount of addition made in the assessment order already stands deleted, there is no locus levy any penalty under section 271AAB(LA) of the Act.
4. That the assessing officer CIT(A) erred on facts and in law on levying the penalty solely on the basis of findings given in the quantum proceedings, without: (a) appreciating that penalty proceedings are separate and independent from assessment proceedings; (b) considering the submissions of the appellant and (c) appreciating that the additions made in the assessment order were not in the nature of undisclosed income, and consequently. the impugned penalty order is bad in law.
Without Prejudice 5 That the CIT(A) erred on facts and in law in confirming the penalty of Rs.43,77,932 under section 271 AABEIA) of the Act in respect of addition(s) made in the assessment order, without appreciating that mere addition in the assessment order does not ipso facto lest to imposition of penalty
6. That the CIT(A)/ assessing failed to appreciate that the additions in the assessment order which have been sustained by CIT(A) are unsustainable in law since the same have been made merely on the basis of presumptions drawn from certain unauthenticated loose papers without any credible material/ corroborative evidence to establish receipt of any income/ cash, outside the books of accounts.
7. That the CIT(A) / assessing failed to appreciate that no penalty is leviable on the addition restricted to Rs.12,29,578/- by the CIT(A) since the said additions has been sustained on (a) an altogether new basis; and (b) estimated basis which cannot be the basis for levy of penalty.
That the CIT(A) / assessing officer failed to appreciate that the addition(s) of Rs.58,01,743/- and Rs.52,712/- made by the assessing officer in the assessment order and sustained by CIT(A) have resulted in double addition of the said amounts as the same were already considered while making the addition on account of alleged undisclosed sales.
Brief fact of the case is that the assessee is an individual deriving income primarily from his proprietary concern M/S Matadin Bhagwandas, which is engaged in the business of wholesale trading of dry fruits and other products. A search and seizure operation u/s 132 of the Act was conducted on 21-03- 2017 in the case of M/s. Agson Global Pvt. Ltd. and other group concerns. The assessee has filed his return of income declaring total Income of Rs.3152680/- for A.Y.2017-18. The AO has completed the assessment vide order dated 30-12-2018 u/s 143(3) of the Act making following additions; (i)addition of Rs 5,02,53749/- on account of alleged undisclosed sales (ii) addition of Rs 58,01,743/- on account of alleged undisclosed commission (iii) addition of Rs 52712/- on account of alleged Kacha bills
4. Aggrieved by the order of the AO the assessee has filed the appeal before the Ld CIT(A) who vide his order dated 05-08- 2019 has partly allowed the appeal and restricted the addition at Rs 1229578/- as against addition of Rs 5,02,53749/-made by the assessing officer. Against the order of the Ld CIT(A) the assessee did not file any appeal.
Subsequently the Assessing Officer has levied the penalty of Rs.4377932/- u/s 271AAB(1A) of the Act in respect of the additions sustained by the Ld CIT(A). Aggrieved the order of the AO the assessee has filed the appeal before the Ld CIT(A) who vide his order dated 07-12-2023 has dismissed the appeal against which the assessee is in appeal before us.
6. The Ld AR has submitted that the penalty order passed by AO is bad in law since no valid notice for assuming jurisdiction to impose penalty u/s 271AAB(1A) was issued. He has further submitted that before levying the penalty u/s 271AAB of the Act Ld AO has to be issued the notice u/s 274 of the Act, as provided in section 271A A B (3) of the Act. In the notice issued to the assessee there is no mention about the various conditions provided u/s 271AAB of the Act relating to levy of penalty @10% or @ 20% or @ 30% as the case may be. Nothing has been specified in the notice about clause a, b and c of section 271ABB of the Act as to at what percentage the penalty will be levied. The assessee deserves an opportunity to plead before the AO before being visited with the penalty with the penalty u/s 271AAB of the Act. The alleged notice issued u/s 274 r.w.s. 271AAB of the Act is liable to be quashed since there is a technical defect in issuing the notice. Relianc placed on the decision of the Hon’ble High Court Madras in the case of PCIT vs Shri R. Elangovan: tax case appeal nos 770&771 of 2018 in this the Hon’ble Madras High court held as under :-
In our considered view, the Tribunal is fully right in vacating the penalty on the ground that the notice was defective. The provisions of the Act have clearly laid down the procedure to be followed and adhered to while imposing the penalty. The proposal for such penalty proceedings was separately initiated upon completion of assessment and there may be cases where the assessee would not even contest the order of assessment. But, that would not preclude the assessee from challenging the penalty proceedings, as penalty proceedings are independent and the procedure required to be followed cannot be dispensed with.
As rightly pointed out by the learned counsel appearing for the assessee, Section 271AAB of the Act, which deals with penalty consists of three contingencies. Therefore, the Assessing Officer should point out to the assessee as to under which of the three clauses, he chooses to proceed against the assessee so as to enable the assessee to give an effective reply. Since the same has not been mentioned, the assessee has been denied reasonable opportunity to put forth their submissions. The Tribunal, in paragraph 5 of the impugned order, has verbatim reproduced the penalty notice and we find that the notice is absolutely vague and none of the irrelevant portions had been struck off nor the relevant portions had been marked or indicated. Hence, the Tribunal is right in observing that the penalty could not have been levied based on such defective notice and more particularly, when the assessee has been strenuously canvassing the jurisdictional issue from the inception.
In so far as the decision of the Allahabad High Court in the case of Sandeep Chandak is concerned, the factual position is slightly different. This decision is for the principle that where the assessee, in the course of search, makes a statement, in which, he admits the undisclosed income and specifies the manner, in which, such income has been derived, then the provisions of Section 271AAB of the Act would automatically get attracted. There can be no quarrel over this proposition. But, once the provisions get attracted, it is incumbent on the part of the Assessing Officer to specify as to under which clause in Section 271 AAB(1) of the Act, he intends to proceed against the assessee. In the instant case, in the absence of such material in the penalty notice, it has to be held that notice is defective.
The decisions of the Karnataka High Court in the case of Manjunatha Cotton and Ginning Factory and SSA’s Emerald Meadows and the decision of this Court in the case of Babuji Jacob clearly support our above conclusion. For all the above passed by the Tribunal.
Reliance also placed on the decision of the CO-Ordinate Bench, Jaipur , In the case of Ravi Mathur vs DCIT ITAno 969 of 2017 the Hon’ble tribunal Jaipur bench held as under :-
7. As regards the validity of notice under section 274 for want of specifying the ground and default, we find that when the basic condition of the undisclosed income not recorded in the books of accounts does not exists, then the same has to be specified by the AO in the show cause notice and further the AO is required to give a finding while imposing the penalty under section 271AAB. Even if the AO is satisfied and come to the conclusion that the assessee has not recorded the undisclosed income in the books of accounts or in the other documents / record maintained in normal course relating to specified previous year, the show cause notice shall also specify the default committed by the assessee to attract the penalty @ 10% or 20% or 30% of the undisclosed income. There is no dispute that the AO has not specified the default and charge against the assessee which necessitated the levy of penalty under section 271AAB of the Act. Consequently, the assessee was not given an opportunity to explain his case for specific default attracting the levy of penalty in terms of clauses (a) to (c) of section 271 AAB (1) of the Act. The Chennai Bench of the Tribunal in the case of DCIT Vs. Shri R. Elangovan (supra) at pages 7 to 10 has held as under :- "It is clear from the Sub Section (3) of Section 271 AAB that Sections 274 and Section 275 of the Act shall, so far as may be, apply. Sub Section (1) of Section 274 of the Act mandates that order imposing penalty has to be imposed only after hearing the assessee or giving a assessee opportunity of hearing. Opportunity that is to be given to the assessee should be a meaningful one and not a farce. Notice issued to the assessee reproduced (supra), does not show whether penalty proceedings were initiated for concealment of income or for furnishing inaccurate particulars of Income or for having undisclosed income within the meaning of Section 271AAB of the Act. Notice in our opinion was vague. Hon'ble Karnataka High Court in the case of SSA's Emerald Meadows (supra) relying in its own judgment in the case of Manjunatha Cotton and Ginning Factory (supra) had held as under:-
"2. This appeal has been filed raising the following substantial questions of law:
(1) Whether, omission if assessing officer to explicitly mention that penalty proceedings are being initiated for furnishing of inaccurate particulars or that for concealment of income makes the penalty order liable for cancellation even when it has been proved beyond reasonable doubt that the assessee had concealed income in the facts and circumstances of the case?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the penalty notice under Section 274 r.w.s. 271(1)(c) is bad in law and invalid despite the amendment of Section 271(18) with retrospective Initiated the penalty by properly recording the satisfaction for the same?
(3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in deciding the appeals against the Revenue on the basis of notice issued under Section 274 without taking into consideration the assessment order when the assessing officer has specified that the assessee has concealed particulars of income?
3. The Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under Section 274 read with Section 271(1)(c) of the Income Tax Act, 1961 (for short 'the Act') to be bad in law as it did not specify which limb of Section 271(1)(c) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee, has relied on the decision of the Division Bench of this Court rendered in the case of CIT vs. Manjunatha Cotton and Ginning Factory (2013) 359 ITR 565.
In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court. The appeal is accordingly dismissed".
In the earlier case of Manjunatha Cotton and Ginning Factory (supra) their lordship had observed as under:-
"Notice under section 274 of the Act should specifically state the grounds mentioned in section 271(1)(c), i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income. Sending printed form where all the grounds mentioned in section 271 are mentioned would not satisfy the requirement of law; The assessee should know the grounds which he has to meet specifically. Otherwise, the principles of natural justice are offended. On the basis of such proceedings, no penalty could be imposed on the assessee;) taking up of penalty proceedings on one limb and finding the assessee guilty of another limb is bad in law; penalty proceedings are distinct from the assessment proceedings though proceedings for imposition of penalty emanate from proceedings of assessment, they are independent and a separate aspect of the proceedings; The findings recorded in the assessment proceedings in so far as "concealment of income" and "furnishing of incorrect particulars" would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the proceedings on the merits. However, the validity of the assessment or reassessment in pursuance of which penalty is levied, cannot be the subject matter of penalty proceedings. The assessment or reassessment cannot be declared invalid in the penalty proceedings". View taken by the Hon’ble Karnataka High Court in the above judgment was indirectly affirmed by the Hon’ble Apex Court, when it dismissed as SLP filed by the Revenue against the judgment in the case of SSA’s Emerald Meadows (supra), specifically observing that there was no merits in the petition filed by the Revenue. Considering the above cited judgments, we hold that the notice issued u/s. 274 r.w.s. 271 AAB of the Act, reproduced by us at para 5 above was not valid. Ex-consequent, the penalty order is set aside.
since we have set aside the penalty order for the impugned assessment year, the appeal filed by the Revenue has become infructucous.
In view of the decision of the Chennai Bench (supra), the show cause notice issued by the AO in the case of the assessee is not sustainable.
In the case of Jaina marketing & Associates vs 8. DCIT;[2024] 162 taxmann .com 439 the Delhi bench of the tribunal held as under :- 19. We have heard both the parties and perused the material available on record. In both the Assessment Years For the sake Le AY 2018-19 and 2019-20, the identical penalty notice u/s 271AAB has been issued convenience, the penalty notice for Assessment Year 2018-19 reproduced reads as under:
Whereas in the course of proceedings before me for the Assessment Year 2018-19. it appears to me that a search was conducted in your case and you were found to have undisclosed income, you are hereby requested to appear before me either personally or through a duly authorized representative at 11:30 AM on 02/07/2021 and show cause why an order imposing a penalty on you should not be made under section 271AAB of the Income Tax Act, 1961. If you do not wish to aval yourself of this opportunity of being heard in person or through authorized representative, you may show cause in writing on or before the said date which will be considered before any such order is made under section 271AAB of the Income Tax Act, 1961.
A show cause notice was also issued on 09/09/2021 for imposing penalty u/s 271AAB for A.Y 2018-19 and identical show cause notice was also issued for A.Y 2019- 20 The show cause notice dated 09/09/2021 reads as under- "During the course of proceedings before me for the assessment year 2019-20, it was found that consequent upon search proceeding you were found to have undisclosed income. You were show caused vide letter ITBA/PNL/S/271AAB/2021-22/1033245356(1) dated 02.06.2021 as to why an order imposing a penalty on you should not be made u/s 271AAB of Income Tax Act, 1961. You were requested to submit your reply by 02.07.2021 but no reply has been submitted by you till date.
You are, hereby, given further opportunity to explain as to why an order imposing a penalty u/s 271AAB of the IT Act, on you should not be made. You are requested to submit your explanation in writing on or before 14.09.2021 which will be considered before any such order is made under section 271AAB of the Income Tax Act, 1961. Please note that in case of non- compliance, it will be assumed that you have nothing to explain in your support and penalty shall be imposed on the basis of material available on record.
As could be seen from the above the notice issued u/s. 271AAB of the Act, it does not depict the charge against the assessee as to under which Clause (a)(b) or (c) or Section 271AAB (1) or Clause (a) or (b) of 271 AAB (1A) of the Act penalty is leviable on the assessee. Therefore, we are of the opinion that the notice initiating penalty u/s. 271AAB of the Act is vague and the assessee was not made aware of the actual charge on which the penalty notice should be clear enough to convey the assessee about the charge which is to be levied against him/ her/ it for the contravention of the related provisions of the Act.
The Ld DR has submitted that assessee was very well aware about the default and nature of the income. The legal issue raised by the assessee is liable to be dismissed since in notice issued u/s 274 of the Act, the AO has mentioned the section of the Act. The ld DR has submitted that assessee has participated in the penalty proceedings and has not raised any objection. He has further submitted that the assessee has not filed any appeal against the order of the Ld CIT(A) who made the additions. Reliance has placed on the judgement of Hon’ble Allahabad High Court in the case of Pr. CIT vs Sandeep Chandak (2018) 405 ITR 648. The relevant portion held as under :- 5. Before we proceed further, the decisions relied upon by the Ld DR are to be considered. In the case of Principal CIT vs Sandeep Chandak & Others [TS-6389- HC-20 17(Allahabad)-O] (supra) the issue before the Hon 'ble High Court was the defect in the notice issued under section 271AAB on account mentioning wrong provision of the Act being 271(1)(c) of the Act. The Hon'ble High Court after considering the fact that the show cause notice issued by the AO though mentions section 271(1) in the caption of the said notice, however, the body of the show cause notice clearly mentions section 271AAB, which was fully comprehended by the assessee as reveals in the reply filed by the assessee against the said show cause notice. Hence the Hon'ble High Court has held as under. - "The Id A.Rs have also challenged that the caption of the notice mentioned only section 271 and not 271AAB. In this respect, the copy of notice has been produced by the Id. A.R. before me. It is seen that the id A.R is correct in observing that the section of penalty has not been correctly mentioned by the AO in the caption. However, the AO will get the benefit of section 292BB of the Income Tax Act, 1961 because firstly, the assessee has raised no objection before the AO in this regard. Secondly, last line of the notice clearly mentions section 271AAB. Thirdly, the assessee has given reply to said notice which shows that the assessee fully comprehended the implication of the notice that it is for section 271 AAB. The assessee has also challenged that the principles of natural justice has not followed by the AD. The detailed submissions of A.R. in this regard has already been reproduced above. The A.R. did not produce any evidence to show that he was not given proper opportunity of bearing. It is clear from the penalty order that the AO has given notice and which was also replied by the assessee. Therefore, in my opinion, principle of natural justice has not been violated. Thus in view of above discussion penalty imposed by AO us 271AAB of the Act is confirmed." Thus it was found by the Hon'ble High Court that the mistake in mentioning the section in the show cause notice is covered under section 292BB and the AO will get the benefit of the same. The said decision will not help the case of the revenue so far as the issue involves the merits of levy of penalty under section 271AAB. As regards the decision of Kolkata Benches of the Tribunal in the case of DCIT vs Amit Agrawal (TS-7675-ITAT-2017 (KolkataJ-O) (Supra), we find that the said decision was subsequently recalled by the Tribunal and a fresh order dated 14th March, 2018 was passed by the Tribunal in favour of the assessee. Therefore, the decision relied upon by the Ld D/R is no more in existence."
The Hon’ble Jurisdictional High Court in the case of PCIT Vs. Kulwant Singh (supra) dealt the issue of defective notice issued ii] 274 r.w.s. 271 (1)(c) of the Act and Hon’ble Court after relying judgment of Hon’ble Supreme Court in the case of CIT Vs. Manjunatha Cotton Ginning Factory and CIT Vs. SSA’s Emerald Meadows (supra) held that such show cause notices would not satisfy the requirement of law as notice was not specified. Merely issuing notice in general proforma will negate the very purpose of natural justice. The Hon’ble Apex Court in the case of Dilip N Shraf 161 Taxmann 218 held that “the quashi criminal proceedings u/s.271(1)(c) of the Act ought to comply with the principles of natural justice”.
10. Now we come back to the fact of the instant case of the assessee and look into what has been mentioned in the alleged notices u/s. 274 r.w.s. 27IAAB of the Act, which are reproduced as below :
For better understanding we reproduce the provisions of section 271 AAB and 274 of the Act which reads as follows; Section 271AAB of the Act.
271AAB. Penalty where search has been initiated – (1) The Assessing Officer may, nothwithstanding anything contained in any other provisions of this Act, direct that, in a case where search has been initiated under section of this or after the 1st of the July, 2012, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him - (a) A sum computed at the rate of ten per cent of the undisclosed income of the specified previous year, if such assessee --- (ii) substantiates the manner in which the undisclosed income was derived; and (iii) on or before the specified date --- (A) pays the tax, together with interest, if any, in respect of the undisclosed income; and (B) furnishes the return of income for the specified pervious year declaring such undisclosed income therein; (b) a sum computed at the rate of twenty per cent of the undisclosed income of the specified previous year, if such assessee- (i) in the course the search, in a statement under sub- section (4) of section 132, does not admit the undisclosed income; and (ii) on or before the specified date- ii) on or before the specified date- (A) declares such income in the return of income furnished for the specified previous year; and (B) pays the tax, together with interest, if any, in respect of the undisclosed income; (c) a sum which shall not be less than thirty per cent but which shall not exceed ninety per cent of the undisclosed income of the specified previous year, if it is not covered by the provisions of clauses (a) and (b).
(2) No penalty under the provisions of clause (c) of sub- section (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1). (3) The provisions of sections 274 and 275 shall, as far as may be, apply in relation to the penalty referred to in this section. Explanation. For the purposes of this section, - (a) "specified date" means the due date of furnishing of return of income under sub-section (1) of section 139 or the date on which the period specified in the notice issued under section 153A for furnishing of return of income expires, as the case may be; (b) "specified previous year" means the which has ended before the date of search, but the date of Previous year- furnishing the return of income under sub-section (1) of section 139 for such year has not expired before the date of search and the assessee has not furnished the return of income for the previous year before the date of search; or (ii) in which search was conducted: undisclosed income" means- (c) "
(i) any income of the specified previous year represented, either wholly or partly, by any money, bullion, jewellery or other valuable article or thing or other documents or any entry transactions under section 132, which has- in found the books of account or in the course of a search (A) not been recorded on or before the date of search in the books of account or other documents maintained in the normal course relating to such previous year, or (B) otherwise not been disclosed to the Chief Commissioner or Commissioner before the date of search; or (ii) any income of the specified previous year represented, either wholly or partly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course relating to the specified previous year which is found to be false and would not have been found to be so had the search not been conducted.
Section 274 of the Act (1) No order imposing a penalty under this Chapter shall be made unless the assessee has been heard, or has been given a reasonable opportunity of being heard. (2) No order imposing a penalty under this Chapter shall be made- (a) by the Income tax Officer, where the penalty exceeds ten thousand rupees; (b) by the Assistant Commissioner, where the penalty exceeds twenty thousand rupees, except with the prior approval of the Deputy Commissioner.] (3) An income tax authority on making an order under this Chapter imposing a penalty, unless he is himself the Assessing Officer, shall forthwith send a copy of such order to the Assessing Officer')
From going through the notices and the provisions, we find that there is no mention about the various conditions provided u/s 271 AAB of the Act. The ld Assessing officer has very casually used the proforma for issuing notice before levying penalty u/s 271AAB for the undisclosed income. Except mentioning the section 271AAB of the Act in the notice it does not talk anything about the provision of section 271AAB.The notice issued by the AO has a fatal error and not a technically correct notice in the eyes of law.
We therefore respectfully following the judgment of the Hon’ble Madras High Court in case of PCIT vs Shri R. Elangovan, decision of co-ordinate Bench Jaipur in the case of Ravi Mathur vs DCIT (Supra) and the given facts and circumstance of the case wherein no specific charge has been mentioned in the penalty notice issued u/s 271AAB of the Act is defective and invalid and thus deserves to be quashed. Since the penalty proceedings itself has been quashed the impugned penalty of Rs 4377932/-stands deleted. The assessee succeeds on legal ground challenging the validity of notice issued u/s 274 of the Act.
14. Since, penalty is cancelled on technical ground, the adjudication of levy on merits becomes academic in nature. Hence grounds raised
on merits are dismissed as infructuous.
15. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 28.10.2024.