MRS.NANJAIAH NAGAMANI,BANGALORE vs. ASSISTANT COMMISSIONER OF INCOME TAX,, BANGALORE

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH “ B ” BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER I.T.A. No.1198/Bang/2014 (Assessment Year : 2008-09) Mrs. Nanjaiah Nagamani, Prop. Deepthi Kiran Travels, 408, 4th G Main, 2nd Block, HRBR Layout, II Block, Bangalore-560 043. …. Appellant PAN ABMPN 7786P Vs. Asst. Commissioner of Income Tax, Circle 6(1), Bangalore. ….. Respondent. Appellant By : Shri V. Srinivasan, CA Respondent By : Dr. P.K. Srihari,Addl. CIT (D.R) Date of Hearing : 23.3.2015. Date of Pronouncement : 10.4.2015. O R D E R Per Shri Jason P. Boaz : This appeal by the assessee is directed against the order of the Commissioner of Income Tax (Appeals)-III, Bangalore dt.26.6.2014 for Assessment Year 2008-09 confirming the levy of penalty under Section 271(1)(c) of the Income Tax Act, 1961 (herein after referred to as 'the Act') by the Assessing Officer. 2. The facts of the case, briefly, are as under :-

ITA No.1198/Bang/2014 2 2.1 The assessee, an individual engaged in the business of running travels in the name & style of M/s. Deepthi Kiran Travels, filed her return of income for Assessment Year 2008-09 on 29.6.2009 declaring a loss of Rs.16,83,628. The return was processed under Section 143(1) of the Act and subsequently the case was taken up for scrutiny. The assessment was completed under Section 143(3) of the Act vide order dt.20.10.2010 wherein the loss of the assessee was determined at Rs.8,20,127 in view of the following additions/disallowances made by the Assessing Officer :- i. Interest on housing loan, claimed as business expenditure : Rs.8,26,701. ii. Accident fund collected from drivers, but not accounted in the assessee's profit and loss account : Rs.36,800. 2.2 While passing the order of assessment for Assessment Year 2008-09, the Assessing Officer simultaneously initiated penalty proceedings under Section 271(1)(c) of the Act separately by issue of notice under Section 274 rws 271 of the Act dt.20.10.2010. The Assessing Officer proceeded to levy of penalty of Rs.2,10,687 under Section 271(1)(c) of the Act vide order dt.29.4.2011 @ 100% of the tax sought to be evaded in respect of both of the above additions / disallowances made in the order of assessment, i.e. on Rs.8,26,700 in respect of interest on housing loan wrongly claimed as businesses and Rs.36,800 collected from drivers but not accounted for by the assessee in her profit and loss account. 2.3 Aggrieved by the order dt.29.4.2011, wherein the Assessing Officer had levied penalty of Rs.2,10,687 under Section 271(1)(c) of the Act for Assessment Year 2008-09, the assessee preferred an appeal before the CIT(A) – III, Bangalore. The learned CIT(A) vide the

ITA No.1198/Bang/2014 3 impugned order dt.26.4.2014 dismissed the assessee's appeal, thereby confirming the levy of penalty of Rs.2,10,687 under Section 271(1)(c) of the Act for Assessment Year 2008-09. 3.1 Aggrieved by the order of the CIT (Appeals) – III, Bangalore dt.26.6.2014 for Assessment Year 2008-09, the assessee is now in appeal before us against the levy of penalty of Rs.2,10,687 under Section 271(1)(c) of the Act raising the following grounds :- “ 1. The orders of the authorities below in so far as levying penalty under Section 271(1)(c) of the Act against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The order levying penalty under Section 271(1)(c) of the Act, is bad in law in as much as, the ld. A.O. has neither reached any satisfaction nor has such satisfaction been recorded in the assessment order and consequently, the very initiation of proceedings under Section 271(1)(c) of the Act, is not in accordance with the requirements of section 271(1) of the Act and consequently, the order of penalty founded on the invalid initiation of penalty proceedings is liable to be cancelled. 3. The order of penalty passed under Section 271(1)(c) of the Act is bad in law as the notice issued under section 274 rws 271 of the Act is not discernable whether the penalty proceedings is initiated for furnishing of inaccurate particulars of income or concealment of income under the facts and in the circumstances of the appellant’s case. 4. The learned CIT (Appeals) is not justified in upholding the penalty under Section 271(1)(c) of the Act in respect of the additions of Rs.8,26,701 being interest payment and Rs.36,800 being amount collected from the drivers which was not accounted in the profit and loss account under the facts and in the circumstances of the appellant’s case. 5. The authorities below failed to appreciate that the appellant has neither concealed any income nor furnished inaccurate particulars of income to warrant levy of penalty and therefore, the penalty levied under Section 271(1)(c) of the Act requires to be cancelled. 6. Without prejudice to the above, the penalty levied is highly excessive and liable tobe reduced substantially. 7. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.” 4. The Grounds raised at S.Nos.6 & 7 in this appeal are general in nature and not being urged before us, are rendered infructuous and therefore no adjudication is called for thereon.

ITA No.1198/Bang/2014 4 5.1 The Grounds raised at S.Nos.1 to 5 challenge the action of the authorities below in both levying and confirming the levy of penalty of Rs.2,10,687 under Section 271(1)(c) of the Act for Assessment Year 2008-09 in the case on hand. At the outset, the learned Authorised Representative put forth submissions on behalf of the assessee in respect of Ground raised at S.No.3 (supra) wherein the assessee challenges the validity of the notice initiating penalty proceedings under Section 271(1)(c) of the Act issued under Section 274 rws 271 of the Act dt.20.10.2010. It is contended by the learned Authorised Representative that the said notice, a copy of which has been filed as part of the assessee’s paper book and placed at page 1 thereof, is without any mention of the default of the assessee for which the penalty proceedings have been initiated. It is contended by the learned Authorised Representative that in the said notice the Assessing Officer has not deleted the inappropriate words and parts of the notice. It is submitted that in view of this, it is not clear whether the default of the assessee is concealment of particulars of income or furnishing of inappropriate particulars of income. The learned Authorised Representative submits that in similar circumstances, the Hon'ble High Court of Karnataka in the case of Manjunath Cotton & Ginning Factory in ITA No.2564 of 2005 dt. 13.12.2012 has held that such a notice wherein it is not clear as to the default committed by the assessee is invalid and the consequential penalty proceedings are also not valid. The learned Authorised Representative submitted that the aforesaid decision of the Hon'ble High Court of Karnataka has been followed by a co-ordinate bench of this Tribunal in the case of M/s. Road Links India Pvt. Ltd. in its order in ITA No.1485/Bang/2013 dt.27.2.2015. The learned Authorised Representative prays that in view of the above judicial

ITA No.1198/Bang/2014 5 pronouncements which are on identical facts as in the case on hand, the penalty of Rs.2,10,687 levied under Section 271(1)(c) of the Act for Assessment Year 2008-09 and duly confirmed by the authorities below ought to be cancelled. 5.2 The learned Departmental Representative supported the orders of the authorities below. 5.3.1 We have heard both parties and perused and carefully considered the material on record; including the judicial pronouncements relied on by the assessee on the issue of validity of the notice issued under Section 274 rws 271 of the Act dt.20.10.2010 for initiating penalty proceedings under Section 271(1)(c) of the Act as raised by the assessee at Ground No.3 in this appeal (supra). A perusal of the notice issued under Section 274 r.w.s. 271 of the Act dt.20.10.2010, reveals that the Assessing Officer has not deleted the inappropriate words and parts of the notice, whereby it is not clear as to the default committed by the assessee; i.e. whether it is the concealment of particulars of income or furnishing of inaccurate particulars of income that the penalty under Section 271(1)(c) of the Act is sought to be levied. We find that the Hon'ble High Court of Karnataka in its order in the case of M/s. Manjunatha Cotton & Ginning Factory in ITA No.2564 of 2005 dt.13.12.2012 has held that such a notice, as has also been issued in the case on hand, is invalid and the consequential penalty proceedings are also not valid. The relevant portion of the judgment of the Lordships at paras 59 to 61 thereof is extracted hereunder for ready reference :- “‘59. As the provision stands, the penalty proceedings can be initiated on various grounds set out therein. If the order passed by the Authority categorically records a finding regarding the existence of any said grounds

ITA No.1198/Bang/2014 6 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 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. 60. 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

ITA No.1198/Bang/2014 7 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. 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 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 proforma without striking of the relevant clauses will lead to an inference as to non- application of mind’. 5.3.2 Respectfully following the judgment of the Hon'ble jurisdictional High Court of Karnataka in the case of Manjunatha Cotton & Ginning Factory (supra), we hold that the notice issued under Section 274 rws 271 of the Act dt.20.10.2010 for Assessment Year 2008-09 for initiating penalty proceedings under Section 271(1)(c) of the Act, in the case on hand, is invalid and consequently the penalty proceedings are also invalid. In this view of the matter, we cancel the penalty of Rs.2,10,687 levied under Section 271(1)(c) of the Act for Assessment Year 2008-09 and allow the assessee's appeal in terms of the ground raised at S.No.3.

ITA No.1198/Bang/2014 8 5.3.3 Since the very basis for the levy of penalty under Section 271(1)(c) of the Act has been held to be invalid, we are of the considered view that the other grounds of appeal at S.Nos.1, 2, 4 & 5 (supra) raised by the assessee against the merits of the levy of penalty under Section 271(1)(c) of the Act require no adjudication at this stage. 6. In the result, the assessee's appeal for Assessment Year 2008-09 is allowed. Order pronounced in the open court on 10th April, 2015.

Sd/- Sd/- (RAJPAL YADAV) (JASON P BOAZ) Judicial Member Accountant Member *Reddy gp Copy to : 1. Appellant 2. Respondent 3. C.I.T. 4. CIT(A) 5. DR, ITAT, Bangalore. 6. Guard File. (True copy) By Order

Asst. Registrar, ITAT, Bangalore