MANORAMA PROPERTIES PVT. LTD.,BHUBANESWAR vs. ITO, WARD-2(2), BHUBANESWAR

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAVAN KUMAR GADALE, JM INCOME TAX APPEAL No.292/CTK/2016 (नििाारण वषा / Assessment Year :2011-2012) Manorama Properties (P) Ltd. Vs. ITO, Ward-2(2), Plot No.107,Subhas Bose Road Bhubaneswar-751007 Rasulgarh, Bhubaneswar-10 स्थायी लेखा सं./जीआइआर सं./ PAN/GIR No. : AAACM 9865 C (अपीऱाथी /Appellant) (प्रत्यथी / Respondent) .. निर्ााररती की ओर से /Assessee by : Shri P.R.Mohanty, AR राजस्व की ओर से /Revenue by : Shri S.K.Bandyopadhyay, DR सुनवाई की तारीख / Date of Hearing : 11/12/2017 घोषणा की तारीख/Date of Pronouncement 11/12/2017 आदेश / O R D E R Per Shri N.S.Saini, AM: This is an appeal filed by the assessee against the order of the CIT(A)-1, Bhubaneswar dated 30.04.2016 for the assessment year 2011-12. 2. The sole ground of appeal taken by the assessee that the CIT(A) was not justified in confirming the levy of penalty of Rs.1,33,515/- u/s.271(1)(c) of the Act 3. At the outset, ld Authorised Representative of the assessee submitted that in the order passed u/s.271(1)(c) of the Act dated 28.08.2014, the AO has observed as under :- “Therefore, it is inferred that the assessee has furnished inaccurate particulars/concealed income worth Rs.4,32,085/- which remain unexplained and thereby liable for penalty u/s.271(1)(c) of the I.T. Act.” He further submitted that while levying the penalty finally in the order, the Assessing Officer observed as under :-

2 ITA No.292/CTK/2016 “In view of the above, I deem it proper to impose a penalty u/s.271(1)(c) read with section 274 of the I.T.Act, 1961.” 4. He submitted that the Assessing Officer was not clear as to whether he was levying penalty on the assessee for concealment of particulars of income or furnishing of inaccurate particulars of income. 5. He submitted that the Hon’ble Supreme Court in the case of CIT vs. SSA’s. Emarld Meadows dated 11th January, 2017 passed in Special Leave to Appeal (CC No.11485/2016)/73 taxmann.com 248 (SC) has held that Omission by the AO to explicitly specify in the penalty order as to whether penalty proceedings are being initiated for furnishing of inaccurate particulars or for concealment of income makes the penalty order liable for cancellation. Hence, he submitted that penalty of Rs.1,33,515/- imposed by the Assessing Officer u/s.271(1)(c) of the Act is, therefore, liable to be cancelled. 6. The Departmental Representative could not controvert the above submission of ld Authorised Representative of the assessee. 7. We have heard the rival submissions perused the orders of lower authorities and materials available on record. We find that the facts in the present appeal are not in dispute and the Assessing Officer in the order passed u/s.271(1)(c) of the Act, dated 28.08.2014 levied penalty of Rs. Rs.1,33,515/-. 8. Hon'ble Apex Court vide judgment in case of M/s. SSA's Emerald Meadows, (2016) 73 taxmann.com 248(SC) dismissed the Special Leave Petition filed by the Revenue against the judgment rendered by Hon'ble High Court of Karnataka whereby identical issue was decided in favour of

3 ITA No.292/CTK/2016 the assessee. Operative part of the judgment in case of M/s. SSA's Emerald Meadows (supra) decided by Hon'ble High Court of Karnataka is reproduced below :- "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(l)(c) is had in law and. invalid in spite the amendment of Section 271(1 B) with retrospective effect and by virtue of the amendment, the assessing officer has 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(l)(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(l)(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 01 the derision of the Division Bench of this Court rendered In the case of COMMISSIONER or INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. 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." 9. The penalty provisions of section 271(1)(c) of the Act are attracted where the assessee has concealed the particulars of income or furnished

4 ITA No.292/CTK/2016 inaccurate particulars of such income. It is also a well-accepted proposition that the aforesaid two limbs of section 271(1)(c) of the Act carry different meanings. Therefore, it was imperative for the Assessing Officer to strike- off the irrelevant limb so as to make the assessee aware as to what is the charge made against him so that he can respond accordingly. The Hon'ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory, 359 ITR 565 (Kar) observed that the levy of penalty has to be clear as to the limb under which it is being levied. As per Hon'ble High Court, where the Assessing Officer proposed to invoke first limb being concealment, then the notice has to be appropriately marked. The Hon'ble High Court held that the standard proforma of notice under section 274 of the Act without striking of the irrelevant clauses would lead to an inference of non-application of mind by the Assessing Officer. The Hon'ble Supreme Court in the case of Dilip N. Shroff vs. JCIT, 291 ITR 519(SC) has also noticed that where the Assessing Officer issues notice under section 274 of the Act in the standard proforma and the inappropriate words are not deleted, the same would postulate that the Assessing Officer was not sure as to whether he was to proceed on the basis that the assessee had concealed the particulars of his income or furnished inaccurate particulars of income. According to the Hon'ble Supreme Court, in such a situation, levy of penalty suffers from non- application of mind. In the background of the aforesaid legal position and, having regard to the manner in which the Assessing Officer has passed the order u/s.271(1)(c) of the Act dated 28.08.2014, the penalty

5 ITA No.292/CTK/2016 proceedings show a non-application of mind by the Assessing Officer and is, thus, unsustainable. 10. The facts of the present appeal is identical to the facts of the case before the Hon’ble Supreme Court in the case of SSA’s. Emarld Meadows(supra) and, therefore, the decision of Hon’ble Supreme Court squarely applies to the case of the assessee. Hence, respectfully following the same, we cancel the order of the Assessing Officer dated 28.08.2014 levying penalty u/s.271(1)(c) of the Act and allow the ground of appeal of the assessee. 11. In the result, appeal filed by the assessee is allowed. Order pronounced in the open court on this 11/12/2017.

Sd/- Sd/- (PAVAN KUMAR GADALE) (N. S. SAINI) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER कटक Cuttack; ददनाांक Dated 11/12/2017 प्र.कु.मि/PKM, Senior Private Secretary आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant- Manorama Properties (P) Ltd. Plot No.107,Subhas Bose Road Rasulgarh, Bhubaneswar-10 प्रत्यथी / The Respondent- 2. ITO, Ward-2(2), Bhubaneswar-751007 आयकर आयुक्त(अपील) / The CIT(A), 3. आयकर आयुक्त / CIT 4. निभागीय प्रनतनिनर्, आयकर अपीलीय अनर्करण, कटक / DR, ITAT, Cuttack 5. 6. गार्ड फाईऱ / Guard file. आदेशािुसार/ BY ORDER, सत्यापपत प्रतत //True Copy// (Senior Private Secretary) आयकर अपीऱीय अधिकरण, कटक / ITAT, Cuttack