MD. SHAMSAD ALAM,KOLKATA vs. ITO, WARD-53(1), KOLKATA, KOLKATA
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 notice issued by the AO under Section 271(1)(c) was defective as it did not specify whether the penalty was for concealment of income or furnishing inaccurate particulars. Therefore, the penalty was deleted.
What were the facts?
The Assessing Officer (AO) made additions to the assessee's income on various grounds, including depreciation on a tanker, discrepancies in loans, interest paid, tanker hire charges, and car maintenance. The AO also levied penalty under Section 271(1)(c). The CIT(A) deleted the penalty for some additions but confirmed it for tanker hire charges and car maintenance expenses.
What were the issues?
Whether the penalty under Section 271(1)(c) is valid when the notice issued is vague and does not specify the exact charge against the assessee.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
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- CIT v. Manjunatha Cotton & Ginning Factory2,590 citing359 ITR 565 · 2013 · HC · Read judgment
Income Tax Appellate Tribunal, “A”, BENCH KOLKATA
Before: SHRI N.V. Vasudevan, JM & DR. A.L.SAINI, AM
O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned appeal filed by the Assessee, pertaining to the assessment year 2009-2010, is directed against the order passed by the ld. Commissioner of Income Tax (Appeals)-XXXIII, Kolkata, in Appeal No.49/CIT(A)-XXXIII/ITO Ward53(1)/Kol/12-13, dated 17.09.2014, which in turn arises out of an order passed by the Assessing Officer u/s.143(3) of the Income Tax Act 1961, (hereinafter referred to as the ‘Act’), dated 27/12/2011.
Brief facts of the case qua the assessee are that the assessee filed his return of income for the assessment year 2009-10 on 30.09.2009 disclosing total income of Rs.1,93,600/-. The return of assessee was processed u/s.143(1) of the I.T. Act. Later on, the assessee’s case was selected under scrutiny u/s.143(3) of the Act and the AO completed the assessment by making addition of Rs.1,30,125/- on account of depreciation on Tanker, Rs.1,33,737/-on account of discrepancies in Loan & Advances, Rs.2,87,105/-on account of interest paid for Tanker purchase, Rs.1,23,876/-on account of Tanker hire charges, and Rs.51,650/- on account of car maintenance. While making the assessment, the AO observed that assessee has claimed Car maintenance expenses whereas there was no motor car in the asset side of the Balance Sheet of the assessee. The AO also observed some bogus expenses claimed by the assessee therefore, the AO levied the penalty U/s 271(1) (c ) of the Act.
Not being satisfied with the penalty order passed by the AO, the assessee filed an appeal before the ld CIT(A), who has confirmed the penalty imposed by AO under section 271(1) (c) of the Act. The ld CIT(A) observed that assessee was not guilty of furnishing any inaccurate particulars of income on concealing income in so far as the additions on account of discrepancy of Rs.1,33,737/- in the loan amount, interest of Rs.2,87,105/- not debited to the profit and loss account and addition of Rs. 1,30,161/- on account of expenditure treated as revenue expenditure by the Assessing Officer are concerned. Therefore ld CIT(A) directed the AO to delete the penalty U/s 271(1) (c ) of the Act, in respect of these additions. However, the ld CIT(A) confirmed the penalty in respect of additions of Rs.1,23,876/- on account of understatement of Tanker hire charges and Rs. 51,650 on account of bogus claim of Car maintenance expenses.
Not being satisfied with the order of ld. CIT(A), the assessee is in further appeal before us and has taken the following grounds of appeal :-
1. For that on the facts and circumstances of the case the ld. Commissioner of Income Tax (Appeals) erred in confirming penalty under section 271 (1) (c ) imposed by ld. Income Tax Officer in respect of addition of Rs.1,23,876/-understatement of tanker hire charges and Rs.51,650/- claim of car maintenance expenses.
5. Ld. AR for the assessee has submitted, before us, stating that at the out set notice issued by the Assessing Officer U/s 271(1) (c ) of the Act is defective. The said notice does not speak about any specific charge for which the penalty on the assessee is to be levied. It is not clear as to whether the assessee is being penalized for the concealment of income or for the furnishing of inaccurate particulars of income. The Assessing Officer did not strike off the irrelevant portion in the notice, therefore it is not clear for which particular default the assessee is being penalized. The ld AR for the assessee has relied on the judgment of Hon`ble Karanataka High Court in the case of Manjunatha Cotton & Ginning Mills 359 ITR 565 (Karnataka), wherein it was held that notice under section 271(1) (c ) of the Act, should specifically state as to whether penalty is being imposed for concealment of income or for furnishing inaccurate particulars of income and as was followed by the Kolkata tribunal in the case of “Suvaprasanana Bhattacharya Vs. ACIT, dated 6.11.2015, Kolkata. Therefore, penalty U/s 271 (1) (c ) should not be levied.
Ld. DR for the Revenue has primarily relied on the findings of the AO, which we have already noted in our earlier para and is not being repeated for the sake of brevity.
Having heard the submissions of ld AR for the assessee and perused the material available on records, we are of the view that notice issued by the AO under section 271(1) (c ) of the Act is defective. The notice under section 271 (1) (c ) of the Act, should specifically state as to whether penalty is being imposed for concealment of income or for furnishing inaccurate particulars of income. There is no any specific charge on the assessee in the case under consideration therefore the penalty imposed by the AO and confirmed by the ld CIT(A) needs to be deleted. Accordingly, we delete the penalty.
In the result, the appeal filed by the assessee, is allowed.
Order pronounced in the open court on this 19/04/2017.
Sd/- Sd/- (N.V. Vasudevan) (DR. A.L.SAINI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; �दनांक Dated 19/04/2017 �काश �म�ा/Prakash Mishra,Sr.PS. आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant- Md. Shamsad Alam 2. ��यथ� / The Respondent.-ITO, Wd-53(1), Kolkata 3. आयकर आयु�त(अपील) / The CIT(A), Kolkata. 4. आयकर आयु�त / CIT 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कोलकाता / DR, ITAT, Kolkata 6. गाड� फाईल / Guard file. स�या�पत ��त //True Copy// आदेशानुसार/ BY ORDER,
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