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Income Tax Appellate Tribunal, ‘A’ BENCH, KOLKATA
Before: Shri Waseem Ahmed & Shri S.S.Viswanethra Ravi
This appeal by the assessee is directed against the order of the Commissioner of Income Tax(Appeals), XXXII, Kolkata dated 02-12-2013 for the assessment year 2008- 09, wherein he confirmed the impugned penalty imposed by the AO u/s. 271(1) ( c) of the I.T. Act, 1961.
The brief facts of the case are that the assessee is an individual and dealing in the business of manufacturing of machines. The assessee filed her return of income at Rs. NIL on 29-09-2008 Under scrutiny, notice U/sec 143(2) was issued. During such proceedings, the AO determined total income of the assessee at Rs.23,34,605/- to that effect an assessment order Maitree Biswas 1 dt: 27-12-2010 was passed u/sec 143(3) of the Act. During such proceedings the AO observed that the assessee claimed discount on sale of machine due to some defects, which was not allowed by him. Accordingly, the said amount was added as income of the assessee. According to him, the assessee could not file any evidence in respect of said claim. For which notice dt. 27-12-2010 u/s. 274 r.w.s 271(1)(c) of the Act issued for initiation of penalty proceedings. The Assessing officer has initiated the penalty proceedings u/s. 271(1) (c) for willful concealment and for furnishing inaccurate particulars of income and levied penalty of Rs.7,84,087/- U/Sec 271(1)(c) of the Act by an order dt. 24-06- 2011. Against which the assessee preferred an appeal before the CIT(A). The CIT-A found that the assessee could not able to satisfy prima facie that her claim is bonafide. Accordingly, he confirmed the penalty imposed by the AO. Aggrieved, the assessee is in appeal before us by raising the following grounds:-
1. For that the ld.CIT(A) ought to have accepted the contention of the appellant that in view of the fact that appeal against order u/s. 143(3)/251 was pending before the Hon’ble Tribunal, this appeal in respect of the levy of penalty ought to be kept pending for disposal till the appeal before the Hon’ble Tribunal was disposed off.
2. For that the issue of quantum of addition in appeal before the ld. CIT(A) having not been decided by the ld. CIT(A) who did not condone the delay in furnishing of the appeal before him and dismissed the same without going into the merits of the addition, the request of the appellant made to the ld. CIT(A) in penalty appeal to keep the appeal pending for disposal ought to have been accepted.
3. For that the appellant had effected sales of some machines which were manufactured upon receipt of orders and due to some defects in the machines supplied, the buyers had paid less amounts which were ITA No. 204/Kol/14 Maitree Biswas 2 claimed as deductions by the appellant but were not allowed by the AO the ld. CIT(A) did not consider these facts properly and confirmed the levy of penalty.
4. For that various evidences and explanations adduced by the appellant before the ld.CIT(A) ought to have been properly considered by him and that only because there was additions to the total income made by the AO, it could not be taken as concealment of income or furnishing of inaccurate particulars of income and in this view of the matter the ld.CIT(A) ought to have allowed the appeal of the appellant and penalty levied ought to have been cancelled.
3. Thereafter, the assessee filed the following additional ground:- For that the assumption of jurisdiction by the AO and issue of notice u/s. 274 read with Sec 271 is wrong, uncalled for and the resultant levy of penalty u/s. 271(1) ( c) is totally bad in law. and contended that the notice dt.27-12-2010 issued by the AO u/s 274/271 of the Act is defective. With the consent of both the parties, we admit the additional ground.
During the course of arguments the ld. AR for the assessee submitted that the case under consideration is covered by the decision of the Hon’ble Karnataka High Court in the case of CIT & Anr. v. Manjunatha Cotton and Ginning Factory, 359 ITR 565 (Karn), and also by the order of the Tribunal in the case of Suvaprasanna Bhattacharya Vs. ACIT, Cir-55, Kolkata in dated 06-11-2015 which considered decision of the Hon’ble Karnataka High Court supra and passed detailed order the said issue. On the contrary, the Ld. DR has relied on the orders of the lower authorities.
Heard the rival submissions and perused the material available on record. The question before us is as to whether the penalty order passed by the AO and confirmed by the ld.CIT(A) is falls for our consideration in pursuance of the law laid down by the Hon’ble Karnataka High Court supra. 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 income or for furnishing inaccurate particulars of income. Further as submitted by the Ld.AR the aforesaid decision will squarely applicable to the present case and all the orders imposing penalty have to be held as bad in law and liable to be quashed.
As rightly pointed out by the Ld.AR, the co-ordinate bench of ITAT, Kolkata in the case of Suvaprasanna Bhattacharya Vs. ACIT by an order dated 06-11-2015 considered the Judgment of Hon’ble Karnataka High Court supra the relevant portion of which reproduced hereunder:
8. The next argument that the show cause notice u/s.274 of the Act which is in a printed form does not strike out as to whether the penalty is sought to be levied on the for “furnishing inaccurate particulars of income” or “concealing particulars of such income”. On this aspect we find that in the show cause notice u/s.274 of the Act the AO has not struck out the irrelevant part. It is therefore not spelt out as to whether the penalty proceedings are sought to be levied for “furnishing inaccurate particulars of income” or “concealing particulars of such income”.
8.1 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 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.
8.2 The Hon’ble Karnataka High Court in the case of CIT & Anr. v. Manjunatha Cotton and Ginning Factory (supra) has laid down the following principles to be followed in the matter of imposing penalty u/s.271(1)(c) of the Act. “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 farm where 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 Maitree Biswas 5 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 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 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 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 that 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.
In the present case, the notice dt: 27-12-2010 issued to Assessee by the AO U/Sec 274 r/w 271 of the Act does not show on which ground the penalty is sought to be imposed, therefore the law laid down by the Hon’ble High Court supra and followed by Co-ordinate Bench of ITAT, Kolkata in the case of Suvaprasanna Bhattacharya supra, we hold that the order dt: 24-06-2011 levying penalty is not valid. Respectfully following the order above, we cancel the penalty of Rs.7,84,087/- levied u/s. 271(1) ( c) by the Assessing Officer and confirmed by the CIT(A).
In the result, the appeal of assessee is allowed.