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Facts
The Assessing Officer initiated penalty proceedings under section 271(1)(c) for AY 2011-12 due to additions/disallowances, including set off of losses and disallowance under section 37. The assessee challenged the penalty, arguing that the notice issued under section 274 r.w.s. 271 was defective as it was a pre-printed omnibus notice that failed to strike off irrelevant clauses and specify the grounds for penalty.
Held
The tribunal, relying on precedents from the Delhi High Court and the Bombay High Court Full Bench, held that a defective omnibus notice which does not clearly specify the limb of section 271(1)(c) vitiates the penalty proceedings. Finding merit in the assessee's appeal, the tribunal concluded that the penalty proceedings were vitiated due to the defective notice and deleted the penalty.
Key Issues
Whether a penalty levied under section 271(1)(c) is valid if the notice initiating penalty proceedings is a defective, pre-printed omnibus notice that fails to specify the grounds or strike out irrelevant clauses.
Sections Cited
271(1)(c), 154, 37, 274
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Income Tax Appellate Tribunal, DELHI BENCH “G”, DELHI
Before: SHRI VIKAS AWASTHY & SHRI AVDHESH KUMAR MISHRA
अपीलाथ� �ारा/ Appellant by : Shri Ajay Wadhawa, Advocate Shri Praveen Kumar, Chartered Accountant Shri V K Garg, Advocate and Shri Anil Kumar Chopra, Chartered Accountant �ितवादी�ारा/Respondent by : Ms. Jaya Choudhary, CIT(DR) सुनवाई क� ितिथ/ Date of hearing : 26/09/2024 घोषणा क� ितिथ/ Date of pronouncement : : 25/10/2024 आदेश/ORDER
PER VIKAS AWASTHY, JM:
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-23, New Delhi (hereinafter referred to as 'the CIT(A)')
(AY 2011-12) dated 05.09.2017, for assessment year 2011-12, confirming levy of penalty u/s. 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act’).
Shri Ajay Wadhawa, appearing on behalf of the assessee submitted that during assessment proceedings, the Assessing Officer (AO) inter alia made additions/disallowances on account of; (i) set off of losses; and (ii) disallowance u/s. 37 of the Act (including disallowance of donation). In so far as disallowance of set off of losses, the assessee got partial relief from the AO in proceedings u/s. 154 of the Act. The AO initiated penalty proceedings u/s. 271(1)(c) of the Act in respect of above additions/disallowance. Notice u/s. 274 r.w.s. 271 of the Act dated 31.03.2015 was served on the assessee. The said notice is in a pre-printed performa without striking of irrelevant clauses. Non striking of irrelevant clauses makes the notice ambiguous and defective. The ld. Counsel for the assessee thus, prayed for deleting penalty levied u/s. 271(1)(c) of the Act steming from defective notice.
Per contra, Ms. Jaya Choudhary representing the department vehemently supported the penalty order dated 29.03.2017 and the impugned order. The ld. DR submits that penalty u/s. 271(1)(c) of the Act has been rightly levied by the AO after recording of satisfaction, she prayed for dismissing appeal of the assessee.
We have heard the submissions made by rival sides and have examined the orders of authorities below. The assessee has challenged penalty u/s. 271(1)(c) of the Act on account of defective notice. The ld. Counsel for the assessee has placed on record notice u/s. 274 r.w.s. 271C of the Act dated 31.03.2015 served on the assessee. A perusal of the same reveals that the notice is issued in a pre (AY 2011-12) printed performa, without striking off irrelevant clauses in the notice. It is an omnibus notice.
The Hon’ble Jurisdictional High Court in the case of PCIT vs. Sahara India Life Insurance Company Ltd. 108 taxmann.com 597 (Delhi) following the decision rendered in the case of CIT vs. Manjunatha Cotton & Ginning Factory 359 ITR 565 deleted penalty where the AO failed to clearly specify the limb of section 271(1)(c) of the Act for levy of penalty in the notice.
The full Bench of Hon’ble Bombay High Court in the case of Mohd. Farhan A Shaikh vs. DCIT 125 taxmann.com 253 has held that where assessment order records satisfaction for imposing penalty on one or other or both grounds mentioned in section 271(1)(c) of the Act, a defect in notice in not striking of irrelevant matter would vitiate penalty proceedings. An omnibus notice suffers from the vice of vagueness.
Thus, in light of facts of the case and the decisions referred above, we find merit in appeal of the assessee. The penalty proceedings are vitiated on account of defect in notice.