M/S SUN - KWIK APPLIANCES PVT LTD.(FORMERLY PUSHPANJALI APPLIANCES PVT LTD),KOLKATA vs. D.C.I.T CC - XVI,KOL., KOLKATA

These four appeals by one assessee is against the common order of Commissioner of Income Tax (Appeals)-II, Kolkata in Appeal No. 45-48/CC- XVI/CIT(A)C-II/10-11 dated 03.10.2012. Assessments were framed by DCIT, Central Circle-XVI, Kolkata u/s 153C of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 31.12.2009 for assessment years 2003-04 to 2006-07 respectively.

The assessee has filed revised grounds of appeal

Sole issue raised by assessee is as regards that Ld. CIT(A) erred in restricting the penalty u/s 271(1)(c) of the Act to the extent of 100%. The facts as brought on record are that assessee in the present case is a Private Limited Company and engaged in manufacturing business of pressure cooker and trading of home appliances and Cell brand pens refills etc. There was a search and seizure operation conducted at the business as well as residential premises of Pushpanjali Group on 12.09.2007 and on subsequent dates. The various Group Companies were covered under the search & seizure operation u/s. 132 of the Act. The assessee, in the instant case, was a part of the said group and its factory-cum-business premises was also covered under survey operation u/s. 133A of the Act. During the course of search operation, books of account and other documents were impounded and seized. The seized documents contained the incrementing material pertaining to the assessee for AYs 2003-04 to 2006-07. Accordingly, notice u/s. 153C of the Act was issued upon the assessee. In response to notice assessee submitted its return of income disclosing its concealed income. The assessment was framed by Assessing Officer after considering the concealed income and after making certain routine additions to the total income of assessee. The AO in his assessment order initiated penalty proceedings u/s. 271(1)(c) of the Act separately and finally levied the penalty @ 150% of the tax sought to the evaded. -70/Kol/2012 A.Y. 03-04 to 06-07 M/s Sun-Kwik Appliances Pvt. Ltd. vs. DCIT CC-XVI, Kol. Page 4 5. Aggrieved, assessee preferred an appeal before Ld. CIT(A) who has reduced the penalty from 150% to 100%. Being aggrieved by this order of Ld. CIT(A) assessee came in second appeal before us.

Before us, Ld. AR submitted that notice issued u/s. 274 of the Act is defective as it does not speak about the charge whether the penalty was levied for concealment of income or for furnishing inaccurate particulars of income.

We have heard Ld. AR of the assessee and perused the materials available on record. After hearing Ld. AR we find that assessee in the instant case disclosed certain income which were not disclosed in the return filed u/s139(1) of the Act. This concealed income was disclosed in its return on account of search and seizure operation and survey operation u/s 132/133A of the Act. The AO has levied the penalty @ 150% of the tax sought to be evaded which was subsequently reduced by Ld. CIT(A) in appellate stage to 100% of the tax sought to be evaded. We find that the assessment proceedings and penalty proceedings are separate from each other. The AO for levying the penalty u/s. 271(1)(c) of the Act has to clearly specify the charge whether it is levied for concealment of income or furnishing inaccurate particulars of income. From the notice issued u/s. 274 of the Act, we find that the specific charge for which penalty has been levied by AO has not been specified under the notice issued u/s. 274 of the Act. It is a mandatory requirement on the part of Assessing Officer to levy the specific charge before imposing penalty u/s. 271(1)(c) of the Act. In the aforesaid facts and circumstances, we find that various courts have decided the issue in favor of assessee. In this connection the Hon’ble Karnataka High Court in the case of CIT & Anr v. Manjunatha Cotton and Ginning Factory, 359 ITR 565 (Karn), has held that notice u/s. 274 of the Act should specifically state as to whether penalty is being proposed to be imposed for concealment of particulars of A.Y. 03-04 to 06-07 M/s Sun-Kwik Appliances Pvt. Ltd. vs. DCIT CC-XVI, Kol. Page 5 income or for furnishing inaccurate particulars of income. The Hon’ble High court has further laid down that certain printed form where all the grounds given in section 271 are given would not satisfy the requirement of law. The Court has also held that initiating penalty proceedings on one limb and find the assessee guilty in another limb is bad in law. It was submitted that in the present case, the aforesaid decision will squarely apply and all the orders imposing penalty have to be held as bad in law and liable to be quashed.

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(1)(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 and 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.

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 Pai reported in 292 ITR 11 at page 19 has held that concealment of income and furnishing inaccurate particulars of income carry different connotations. The Gujarat High -70/Kol/2012 A.Y. 03-04 to 06-07 M/s Sun-Kwik Appliances Pvt. Ltd. vs. DCIT CC-XVI, Kol. Page 7 Court in the case of MANU ENGINEERING reported in 122 ITR 306 and the Delhi High Court in the case of VIRGO MARKETING reported in 171 Taxman 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 pro forma without striking of the relevant clauses will lead to an inference as to non-application of mind.” The final conclusion of the Hon’ble Court was as follows:- “63. In the light of what is stated above, what emerges is as under: a) Penalty under Section 271(1)(c) is a civil liability. b) Mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities. c) Willful concealment is not an essential ingredient for attracting civil liability. d) Existence of conditions stipulated in Section 271(1)(c) is a sine qua non for initiation of penalty proceedings under Section 271. e) The existence of such conditions should be discernible from the Assessment Order or order of the Appellate Authority or Revisional Authority. f) Even if there is no specific finding regarding the existence of the conditions mentioned in Section 271(1)(c), at least the facts set out in Explanation 1(A) & (B) it should be discernible from the said order which would by a legal fiction constitute concealment because of deeming provision. g) Even if these conditions do not exist in the assessment order passed, at least, a direction to initiate proceedings under Section 271(l)(c) is a sine qua non for the Assessment Officer to initiate the proceedings because of the deeming provision contained in Section 1(B). h) The said deeming provisions are not applicable to the orders passed by the Commissioner of Appeals and the Commissioner. i) The imposition of penalty is not automatic. j) Imposition of penalty even if the tax liability is admitted is not automatic. k) Even if the assessee has not challenged the order of assessment levying tax and interest and has paid tax and interest that by itself would not be sufficient for the authorities either to -70/Kol/2012 A.Y. 03-04 to 06-07 M/s Sun-Kwik Appliances Pvt. Ltd. vs. DCIT CC-XVI, Kol. Page 8 initiate penalty proceedings or impose penalty, unless it is discernible from the assessment order that, it is on account of such unearthing or enquiry concluded by authorities it has resulted in payment of such tax or such tax liability came to be admitted and if not it would have escaped from tax net and as opined by the assessing officer in the assessment order. l) Only when no explanation is offered or the explanation offered is found to be false or when the assessee fails to prove that the explanation offered is not bona fide, an order imposing penalty could be passed. m) If the explanation offered, even though not substantiated by the assessee, but is found to be bona fide and all facts relating to the same and material to the computation of his total income have been disclosed by him, no penalty could be imposed. n) The direction referred to in Explanation IB to Section 271 of the Act should be clear and without any ambiguity. o) If the Assessing Officer has not recorded any satisfaction or has not issued any direction to initiate penalty proceedings, in appeal, if the appellate authority records satisfaction, then the penalty proceedings have to be initiated by the appellate authority and not the Assessing Authority. p) Notice under Section 274 of the Act should specifically state the grounds mentioned in Section 271(1)(c), i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income q) Sending printed form where all the ground mentioned in Section 271 are mentioned would not satisfy requirement of law. r) The assessee should know the grounds which he has to meet specifically. Otherwise, principles of natural justice is offended. On the basis of such proceedings, no penalty could be imposed to the assessee. s) Taking up of penalty proceedings on one limb and finding the assessee guilty of another limb is bad in law. t) The penalty proceedings are distinct from the assessment proceedings. The proceedings for imposition of penalty though emanate from proceedings of assessment, it is independent and separate aspect of the proceedings. u) The findings recorded in the assessment proceedings in so far as "concealment of income" and "furnishing of incorrect particulars" would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the said proceedings on merits. However, the validity of the assessment or -70/Kol/2012 A.Y. 03-04 to 06-07 M/s Sun-Kwik Appliances Pvt. Ltd. vs. DCIT CC-XVI, Kol. Page 9 reassessment in pursuance of which penalty is levied, cannot be the subject matter of penalty proceedings. The assessment or reassessment cannot be declared as invalid in the penalty proceedings.” (emphasis supplied) It is clear from the aforesaid decision and on the facts of the present case that the show cause notice u/s. 274 of the Act is defective as it does not spell out the grounds on which the penalty is sought to be imposed. Following the decision of the Hon’ble Karnataka High Court, we hold that the orders imposing penalty in all the assessment years have to be held as invalid and consequently penalty imposed is cancelled.