ACIT 27(3), NAVI MUMBAI vs. RUSTOM ICE & COLD STORAGE CO., MUMBAI

At the outset, on a query from the Bench, as to the outcome of the appeal in quantum proceedings, Ld. Counsel for the assessee submitted that the Coordinate Bench restored the quantum appeal to the file of the (A.Y: 2009-10) M/s. Rustom Ice & Cold Storage Co., Ld.CIT(A) in ITA.No.7368/Mum/2012 dated 03.03.2016. Learned Counsel for the assessee submitted that the quantum appeal is still pending before the Ld.CIT(A). On a query from the Bench as to why this issue should not be restored back to the file of the Ld.CIT(A) as the quantum appeal is pending, Ld. Counsel for the assessee, at the outset submitted that the initiation of the penalty proceedings itself is bad in law as the charge was not made clear in the notice issued u/s. 274 r.w.s. 271(1)(c) of the Act. Ld. Counsel for the assessee referring to the notice submitted that the charge is not known for initiation of penalty u/s. 271(1)(c) i.e. either for concealment of income or for furnishing of inaccurate particulars of the said income. Referring to the Assessment Order and subsequent show cause notice, Ld. Counsel for the assessee submitted that Assessing Officer in the Assessment Order mentioned the charge as furnishing inaccurate particulars of income, however, coming to the show cause notice and the penalty order it is mentioned that the assessee concealed income and furnished inaccurate particulars of income. Therefore, he submits that there is no specific charge for which the penalty was levied. Ld. Counsel for the assessee placed reliance on the following decisions in support of its contentions that if specific charge is not made in the notice by striking off the appropriate limb the initiation of penalty proceedings become null and void.

We have heard the rival submissions, perused the orders of the authorities below and the case laws relied on, on the preliminary issue of the validity of initiation of penalty proceedings u/s. 271(1)(c) of the Act. In this case the appeal against quantum additions has been set-aside to the file of the Ld.CIT(A) by the Coordinate Bench in ITA.No.7368/Mum/2012 dated 03.03.2016 and the appeal is still pending before the Ld.CIT(A). On (A.Y: 2009-10) M/s. Rustom Ice & Cold Storage Co., a perusal of the appeal filed by the assessee against the penalty order before the Ld.CIT(A), we find that the preliminary contentions now raised before us were never raised before the Ld.CIT(A). Though they are legal contentions we feel it appropriate to restore this appeal to the file of the Ld.CIT(A) who shall decide all the contentions of the assessee along with the quantum appeal pending before him. Thus, we restore this appeal to the file of the Ld.CIT(A) who shall dispose off the penalty appeal of the assessee along with the quantum appeal pending before him. The assessee is at liberty to raise all the contentions on preliminary issues before the Ld.CIT(A) including the very basis for levy of penalty and the Ld.CIT(A) shall dispose off those contentions in accordance with the law, after providing adequate opportunity of being heard to the assessee. Thus, this appeal is restored to the file of the Ld.CIT(A) for denovo adjudication in accordance with law.

In the result, appeal of the Revenue is allowed for statistical purpose.