SAVITA SOMCHAND SHAH,THANE vs. ASST CIT CIR 1, KALYAN
In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal held that the AO did not initiate the penalty with due application of mind as he was unclear about the specific limb (concealment or inaccurate particulars) for which the penalty was being levied. This vitiated the penalty proceedings.
What were the facts?
The assessee filed a belated original return and a revised return. The AO treated the revised return as non-est and made an addition on account of share sale, leading to a penalty under Section 271(1)(c). The CIT(A) confirmed the penalty.
What were the issues?
Whether the penalty under Section 271(1)(c) is bad in law due to the AO's lack of clarity in specifying the exact ground for penalty initiation.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(1)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- CIT v. SSA’s Emerald Meadows953 citing72 Taxmann.com 248 · 2016
Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI D.T. GARASIA, JM & SHRI MANOJ KUMAR AGGARWAL, AM
आदेश / O R D E R Per Manoj Kumar Aggarwal (Accountant Member) 1. The captioned appeal by assessee for Assessment Year [AY] 2009-10 assails the order of Ld. Commissioner of Income tax (Appeals)-2 [CIT(A)], Thane dated 31/03/2016 qua confirmation of penalty u/s 271(1)(c) for Rs.2,94,617/-. 2. Briefly stated, the assessee, being resident individual, was subjected to an assessment u/s 143(3) vide Assessing Officer [AO] order dated 25/11/2011 wherein the total income of the assessee was determined at Rs.12,71,520/- after certain adjustments / disallowances as against returned income of Rs.3,68,830/- filed by assessee on 10/02/2010 which was later revised to Rs.11,46,280/- on 31/03/2010. Since, the original return was filed belatedly, the revised return was treated as non-est by the Ld. AO. The assessee suffered addition of Rs.9,02,693/- on account of sale of certain shares against which she was saddled with a penalty of Rs.2,94,617/- u/s 271(1)(c) vide AO penalty order dated 16/05/2012. The assessee contended that it already offered the income in the revised return and paid due taxes thereupon and hence not liable for penalty. However not convinced, AO levied the impugned penalty, which upon appeal, was confirmed by the Ld. CIT(A). Aggrieved, the assessee is in appeal before us. 3. The Ld. Counsel for assessee [AR] has assailed the penalty on legal grounds as well as on merits. It was contended that the assessee voluntarily offered the income in the revised return of income and paid due taxes thereupon and therefore, the penalty was unjustified. It was only because the return was treated as non-est in view of the statutory provisions, the assessee is saddled with the impugned penalty. Further Ld. AR while drawing our attention to the quantum Assessment order, show cause notice issued u/s 274 read with Section 271(1)(c) and AO’s penalty order and contended that the penalty order stood vitiated on technical grounds as the penalty was initiated / levied by AO without due application of mind. First of all, no specific charge was mentioned by AO in ITA No.4197/M/2016 Savita Somchand Shah Assessment Year 2009-10 the quantum order for which the penalty was being initiated. Further, the show-cause notice issued u/s 274 r.w.s. did not specify the exact ground / limb for which the assessee was being penalized which impinged upon a valuable right of the assessee to effectively contest the penalty proceedings. Finally the penalty was levied for concealment or filing of inaccurate particulars. Thus, the AO was never clear in his mind as to limb against which he initiated the penalty in the quantum order and therefore, the penalty order was bad in law in the light of various judicial pronouncements. Reliance has been placed on the judgment of Hon’ble Apex court in the case of CIT Vs SSA’s Emerald Meadows [72 taxmann.com 248] and Hon’ble Bombay High Court in CIT Vs. Samson Perinchery [98 CCH 0039 Mum HC]. Per contra, Ld. DR contended that the penalty was initiated with due application of mind. The notice u/s 274 was in the standard format and the limb for which the penalty was initiated was duly ticked by the AO and the assessee very well knew at all times for which the penalty was initiated and levied. The assessee actively contested the penalty and therefore, not entitled to raise this issue now.
We have heard the rival contentions and perused the relevant material on record. Since, the legal issue raised goes to the root of the matter, we take up the same first. A perusal of the quantum assessment order reveals that the Ld. AO has used the expression ‘Penalty proceedings u/s 271(1)(c) is being initiated’. Further, a perusal of notice dated 25/11/2011 issued under Section 274 read with section 271 of the Income Tax Act, 1961 reveals that the AO has ticked the expression ‘have concealed the particulars of your income or furnished inaccurate particulars of income. Finally, the penalty has been levied vide order dated 16/05/2012 by using the expression concealed or filed inaccurate particulars of income. Therefore, in our opinion, the AO has not initiated the penalty with due application of mind as at the time of initiation of penalty the AO was not clear about the limb for which the penalty was being initiated. It is well settled that the expression concealment of income and furnishing of inaccurate particulars carries different meanings / connotations and the therefore, the assessee has every right to know the limb for which he is being penalized and failure to do so vitiates the penalty. Our Savita Somchand Shah Assessment Year 2009-10 view is fortified by the ratio of cited case laws. Hence, finding the penalty bad in law, we quash the same and allow assessee’s appeal. In nutshell, the assessee’s appeal succeeds.
Order pronounced in the open court on 17th April, 2017.
More judgments on Section 271(1)(c)
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- Hetal Vinodchandra Sheth, Ahmedabad vs The ITO, Ward-5(3)(1), AhmedabadITA 2369/AHD/2025[2014-15]Status: Disposed16 Oct 2026AY 2014-15
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