SATRA PROPERTIES (INDIA) LTD,MUMBAI vs. ACT CEN CIR 33, MUMBAI

Both these appeals are filed against the decision of the CIT (A)-41, Mumbai dated 28.3.2014 in connection with the penalty u/s 271(1)(c) of the Act. Briefly stated relevant facts of the case are that the assessee is a public limited company engaged in the business of real estate with a focus on premium residential apartments, commercial premises, malls and hotels. There was a search action on the assessee on 23.12.2010. Assessee offered undisclosed income in this case and filed the return of income disclosing the same. This additional income of Rs. 11.23 Crs (rounded of) relates to the bogus purchases from three parties namely (i) M/s. J.B. Interlink; (ii) M/s. P.K. Trading Co and (iii) M/s. N.B. Enterprises. Assessment was completed and the penalty u/s 271(1)(c) was ordered vide the order dated 26.9.2013. In the said penalty order, AO imposed the minimum penalty of Rs. 1,02,77,764/-.

During the first appellate proceedings, in connection with the said penalty, CIT (A) granted relief substantially except the income of Rs. 9,68,620/-. Aggrieved with the said relief granted by the CIT (A), Revenue is in appeal vide its appeal ITA No.4733/M/14. Further, aggrieved with the CIT (A)‟s decision in connection with the penalty relates to the income of Rs. 9,68,620/-, assessee is in appeal before the Tribunal vide its appeal ITA No.4199/M/2014.

With the background of the above facts, Ld Counsel for the assessee raised the legal issue stating that the said penalty proceedings are bad in law as the AO did not have clarity in his mind as to the correctness of the limb of the provisions of clause (c) of section 271(1) of the Act. In this regard, Ld Counsel for the assessee brought our attention to the assessment order and read out the following from page 9 of the assessment order which reads as under:- “Penalty u/s 271(1)(c) is initiated for furnishing inaccurate particulars and concealment of income from receipt of commission as discussed above.”

Further, Ld Counsel for the assessee brought our attention to the penalty order dated 26.9.2013 and read out the following from page 3 which reads as under:- “I, therefore, am of the view that the assessee has concealed its income by inflating its purchases by introducing bogus bills, and also furnished inaccurate particulars and is therefore liable for penalty u/s 271(1)(c).”

Further also, Ld Counsel for the assessee brought our attention to pages 181 to 182 of the paper book ie the notice u/s 274 r.w.s 271 of the Act dated 28.3.2013 and mentioned that the Assessing Officer has not ticked the appropriate limb of the para pertaining to the „concealment of particulars of income‟ or „furnishing of inaccurate particulars‟ of such income. AO accordingly ticked the entire para showing the confusion in the mind of the AO at the time of initiating the penalty proceedings. Ld AR further argued that the penalty proceedings initiated in this case proves that the AO does not have a clarity in his mind if the penalties are initiated for „concealment of income‟ or for „furnishing inaccurate particulars‟ of such income. Ld AR further argued that the Assessing Officer cannot be said to have assumed correct jurisdiction in this case. For this proposition, Ld AR relied on various binding judgments. Bringing our attention to the order of the Tribunal in the case of Shri Samson Perinchery in to 4630/M/2013 dated 11.10.2013 Ld AR mentioned that under similar factual matrix of that case, relying on the judgment of the Hon‟ble Karnataka High Court in the case of CIT vs. Manjunatha Cotton & Ginning Factory [2013] 35 Taxmann.com 250 (Kar.) and many others, the Tribunal held that the penalty levied is unsustainable. Ld AR also mentioned that the said decision has attained finality at the level of the Hon‟ble Apex Court. Replying to the Ld AR‟s argument, relying on the judgment of the Hon‟ble Apex Court in the case of MAK Data P. Ltd vs. CIT in Civil Appeal No.9772 of 2013, Ld AR submitted that the said case is distinguishable on facts but the with reference to the confusion in the minds of the AO on the jurisdiction and the satisfaction of the AO is one of the issues adjudicated in the said judgment.

On hearing both the parties and on going through the above extracted portions from the orders of the AO, it is obvious that the officers suffer from ambiguity as to which limb of the clause-(c) of section 271(1) of the Act should be invoked. The relevant addition is undisputedly the disallowance of such bogus purchases from the purchases accounts and the same was not properly understood in the light of clause-(c) of section 271(1) of the Act. In this regard, we have examined the legal propositions in the case of Shri Samson Perinchery (supra), wherein one of us (AM) is a party to the said order and find it relevant to extract the relevant paras for the sake of completeness of this order. Paras 9 to 13 of the said decision of the Tribunal dated 11.10.2013 (supra) are extracted as under:-

On the facts relating to the recording of the satisfaction for levy of penalty u/s 271(1)(c) of the Act, we have perused the relevant orders of the revenue and examined the last para of the assessment order which reads as under: “Assessed u/s 143(3) of the Income Tax Act, 1961 at a total income of Rs. 31,98,460/-. Charge interest u/s 234B & 234C as applicable. Give credit for taxes paid after due verification. Issue demand noticed and challan accordingly issue show cause notice for initiating penalty u/s 271(1)(c) of the IT Act, 1961 for furnishing inaccurate particulars of the income. This order is passed after getting approval from Addl. CIT, Range-4, Central Circle-II, Mumbai vide his letter No. Addl CIT C.R.4/Approval-153D/2010-11, dated 29.12.2010.”

From the above, the penalties were to be initiated either for “furnishing inaccurate particulars of income” and not for “concealment of income”. However, the AO is under obligation to specify the same and should not leave the scope for imaginations and surmises. At the end, we find that the penalty was actually levied „for concealment of (particulars) of income‟ which is evident from para 4 of the assessment order which reads as under: “4. From the above, I am satisfied that the assessee has concealed the particulars of income so as to evade tax and as such penalty u/s 271(1)(c) of the Act is leviable. The tax on the undisclosed income of Rs. 31,00,790/- (including foreign travel) works out to Rs. 9,30,200/-. Accordingly, I hereby levy a minimum penalty at 100% of tax i.e., Rs. 9,30,200/-.” 11.1. Further, we have also perused the notice issued u/s 274 of the Act and the relevant para reads as under: “have concealed the particulars of your income or ________ Furnished inaccurate particulars of such income” Knowingly or otherwise, the AO has not bothered to fill the blanks with appropriate limb of the provisions of section 271(1)(c) of the Act.

The above extracts reveal that the AO has not applied his mind to the fact for which reason of the penalty, the notices were issued. The above documents reveal that the penalty proceedings were initiated for “failure to furnish inaccurate particulars of income and however, the penalty was levied for concealment of income” . 12.1. In this regard, we have perused the said praras 59 to 61 of the Hon‟ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory (supra) and the same read as under: “NOTICE UNDER SECTION 274

As the provision stands, the penalty proceedings can be initiated on various ground set out therein. If the order passed by the Authority categorically records a finding regarding the existence of any said grounds mentioned therein and then penalty proceedings is initiated, in the notice to be issued under Section 274, they could conveniently refer to the said order which contains the satisfaction of the authority which has passed the order. However, if the existence of the conditions could not be discerned from the said order and if it is a case of relying on deeming provision contained in Explanation-1 or in Explanation-1(B), then though penalty proceedings are in the nature of civil liability, in fact, it is penal in nature. In either event, the person who is accused of the conditions mentioned in Section 271 should be made known about the grounds on which they intend imposing penalty on him as the Section 274 makes it clear that assessee has a right to contest such proceedings and should have full opportunity to meet the case of the Department and show that the conditions stipulated in Section 271(1)(c) do not exist as such he is not liable to pay penalty. The practice of the Department sending a printed form „here all the ground mentioned in Section 271 are mentioned would not satisfy requirement of law when the consequences of the assessee not rebutting the initial presumption is serious in nature and he had to pay penalty from 100% to 300% of the tax liability. As the said provisions have to be held to be strictly construed, notice issued under Section 274 should satisfy the grounds which he has to meet specifically. Otherwise, principles of natural justice is offended if the show cause notice is vague. On the basis of such proceedings, no penalty could be imposed on the assessee.

Clause (c) deals with two specific offences, that is to say, concealing particulars of income or furnishing inaccurate particulars of income. No doubt, the facts of some cases may attract both the offences and in some cases there may be overlapping of the two offences but in such cases the initiation of the penalty proceedings also must be for both the offences. But drawing up penalty proceedings for one offence and finding the assessee guilty of another offence or finding him guilty for either the one or the other cannot be sustained in law. It is needless to point out satisfaction of the existence of the grounds mentioned in Section 271(l)(c) when it is a sine qua non for initiation or proceedings, the penalty proceedings should be confined only to those grounds and the said grounds have to be specifically stated so that the assessee would have the opportunity to meet those grounds. After, he places his version and tries to substantiate his claim, if at all, penalty is to be imposed, it should be imposed only on the grounds on which he is called upon to answer. It is not open to the authority, at the time of imposing penalty to impose penalty on the grounds other than what assessee was called upon to meet. Otherwise though the initiation of penalty proceedings may be valid and legal, the final order imposing penalty would offend principles of natural justice and cannot be sustained. Thus once the proceedings are initiated on one ground, the penalty should also be imposed on the same ground. Where the basis of the initiation of penalty proceedings is not identical with the ground on which the penalty was imposed, the imposition of penalty is not valid. The validity of the order of penalty must be determined with reference to the information, facts arid materials in the hands of the authority imposing the penalty at the time the order was passed and further discovery of facts subsequent to the imposition of penalty cannot validate the order of penalty which, when passed, was not sustainable. 61 The Assessing Officer is empowered under the Act to initiate penalty proceedings once he is satisfied in the course of any proceedings that there is concealment of income or furnishing of inaccurate particulars of total income under clause (c). Concealment, furnishing inaccurate particulars of income are different. Thus the Assessing Officer while issuing notice has to come to the conclusion that whether is it a case of concealment of income or is it a case of furnishing of inaccurate particulars. The Apex Court in the case of Ashok Pal reported in 292 flR 11 at page 19 has held that concealment of income and furnishing inaccurate particulars of income carry different connotations. The Gujrat High Court in the case of MANU ENGINEERING reported in 122 ITR 306 and the Delhi High Court in the case o VIRGO MARKETING reported in 171 Taxmn 156, has held that levy of penalty has to be clear as to the limb for which it is levied and the position being unclear penalty is not sustainable. Therefore, when the Assessing Officer proposes to invoke the first limb being concealment, then the notice has to be appropriately marked. Similar is the case for furnishing inaccurate particulars of income. The standard proforma without striking of the relevant clauses will lead to an inference as to non- application of mind.” 13. From the above, it is clear that the penalty should be clear as to the limb for which it is levied and the position being unclear here the penalty is not sustainable. Therefore, considering the same, we are of the opinion that the ground raised by the assessee should be allowed on technical grounds Accordingly, adjudication of the penalties on merits become an academic exercise. Therefore, the grounds raised in all the six assessment years are allowed.”

The above views are confirmed by the Hon‟ble Jurisdictional High Court vide IT Appeal Nos. 1154 of 2014 and others, dated 5.1.2017. Considering the settled position of the issue, we are of the opinion, the grounds raised