DR. DINESH JAIN,MUMBAI vs. ITO 11(2)(2), MUMBAI

आदेश / O R D E R Per Sandeep Gosain, J. M.: There are 2 appeals under consideration. These appeals are filed by the assessee against the orders of CIT(A)-3 Mumbai, dated 24.1.2014 for the Asst Year: 2006- 2007 ( & dated 27-1-2014 for Asst year: 2007-08 (ITA No. 2234) in the matters of penalty levied u/s 271(1)(c) by the AO. Since, the issues raised in these &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO two appeals are identical, except for year of assessment therefore for the sake of convenience; they are clubbed, heard and disposed of by this consolidated order.

2) In the facts & circumstances of the case and in law, the Ld. CIT(A) has erred in observing that it is not essential for the AO to specify whether &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO penalty is being initiated for concealment or for furnishing the inaccurate particulars of income.

3) In the facts & circumstances of the case and in law, the Ld. CIT(A) has erred in confirming that both the limbs of the penalty section were attracted on the same impugned addition.

4) In the facts & circumstances of the case and in law, the Ld. CIT(A) has erred in upholding the penalty by not appreciating that the alleged addition of Rs. 24,36,191/- to the returned income was reduced by 10%, by the Honorable ITA T, allowing for some estimated expenses, thereby making the impugned addition, one in the nature of estimation, not arising from the books of accounts and thus one not falling in the category of furnishing inaccurate particulars of income, which is a return specific event.

5) In the facts & circumstances of the case and in law, the Ld. CIT(A) has erred in upholding the penalty by not appreciating , that per se no inaccuracy was found in the particulars of the returned income and that the impugned estimated addition was from an external source and not arising from the particulars of the return of income filed and that penalty for filing inappropriate particulars of income, is return of income &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO specific and can arise only from the figures given in the return of income and not otherwise.

6) In the facts & circumstances of the case and in law, the Ld. CIT(A) has erred in upholding the penalty by not appreciating that the bonafide explanation with the evidences like Affidavit, etc; in response to the penalty proceeding were neither disproved nor negated by the AO and the findings in the quantum proceeding (till ITAT) formed the sole basis for levying and confirming the penalty.

7) In the facts & circumstances of the case and in law, the Ld.CIT(A) failed to appreciate that the onus of evidence being shifting in nature, the evidence submitted by the appellant, was not effectively refuted by the AO/CIT (A), leave aside calling the appellant to reply back.

8) In the facts & circumstances of the case and in law, the Ld.CIT(A) has erred in upholding the penalty at 140% of the tax sought to be evaded.

9) In the facts & circumstances of the case and in law, the Ld.CIT(A) has erred in upholding the penalty by not appreciating or commenting on the High Court judgments and various ITAT judgments (including Mumbai

ITAT) relevant to the appellant's case herein. "

&2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO Grounds 1 to 9: are challenges on the legalities of the penalty whilst the other grounds are a mix of factual/merits and legalities.

2) Brief facts of the case are that the assessee a dentist is an individual. The Assessee filed his return of income U/S 139(1) for the A Y 2006-07 declaring the total income of Rs. 758,500/- based on tax audited books of accounts. A survey was conducted in the premises of the assessee on 30-8-2007. The assessee is a practicing dentist and is running a clinic where the survey was conducted. During survey some diaries and loose documents esp "Page No. 17" were found which depicted that assessee was understating his professional receipts. This Page No 17 contained month wise figures of professional receipts from the Month of April 2003till June 2006. The assesses statement on oath was recorded u/s 133A on 30-8-07 and thereafter u/s 131 on 3-9-07 & 6-9-07. A statement of Ms. Brenda M. D'Souza, receptionist of the assessee was recorded during the survey. In this statement it was stated by her that receipts from each patient are recorded in the diary and by the end of the day the receipts along with the diary were handed over to Dr. Jain, i.e. the assessee. There were allegations of tearing away of pages in the diary. Ms. Brenda M. D'Souza further stated that she has not tom the pages because the note book was being handed over to the doctor on daily basis. The assessee was confronted with these diaries/document during the survey as well as during the post survey proceedings. Initially assessee had agreed to offer the additional receipts which were shown in the loose paper No.17. &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO However later on it was stated that assessee had engaged a financial consultant one Mr. Ramesh Shetty who was to prepare a project report because assessee wanted to install some major equipments. During the exercise of preparation of such project report the consultant had enhanced the monthly receipts and had increased the figures to show cosmetic appearance before be banker. The assessee also produced the Affidavit of the said Ramesh Shetty besides his own affirmation in an Affidavit.

3) The Assessment was completed u/s 143(3) of the Act on 30.12.2008 and the totalincome of the assessee was determined at Rs. 43,83,940/-. The addition of Rs. 24,36,191/- was on account of the difference between the fee receipts as found in Page No. 17 and as compared to the actual fees recorded in the books of the accounts. The CIT(A) sustained the said addition of Rs. 24,36,191/- in quantum appeal. The ITAT though gave partial relief but sustained the additions and ultimately penalty proceedings were initiated by the AO. In the penalty order dated 27-3-2012 the AO observed that the assessee has concealed the income and furnished inaccurate particulars of income, on the addition made due to page no.17. penalty was thus levied for Rs.16@lacs @ 200% on account of furnishing inaccurate particulars of income within the meaning of Seciton 271(1)(c) read with Expl-1u/s 271(1)(c).

4) Aggrieved by the order of AO levying penalty, the asessee filed an appeal before the CIT(A). CIT(A) though dismissed the appeals for both the assessment &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO years, but gave relief by restricting the penalty to 140% instead of 200% as levied by the AO.

5) Aggrieved by the decision of the CIT (A), the assessee filed the present appeals before the Tribunal by raising the above mentioned grounds.

6) During the proceedings before us, ld. Counsel for the assessee mentioned that these appeals can be disposed off primarily on legal grounds based on decided cases and on the preliminary issue relating to the absence of mentioning of the limbs in the initiation of penalty proceedings in the asst order, notice U/S 274 and overlapping of both the limbs in the final impugned penalty order. The Ld. Counsel also stated that even on merits mere reliance on the ITA T order in quantum proceedings without examining/rebutting the evidences filed by the assessee does not justify levy of penalty. In this regard, Ld Counsel brought our attention to para 3 page 7 of the Assessment order wherein after the addition of Rs. 24,36,191/- it was merely mentioned" Penalty proceedings U/S 271(l)(c) is initiated separately". The Ld. Counsel stated that no specific limb was mentioned in the assessment order nor in the Notice u/s 274. The Ld. Counsel stated that in the impugned penalty order dt : 27-3- 2012 the AO observed that the assessee has concealed the income and furnished inaccurate particulars of income, pertaining to the same addition made due to page No.17. the Ld. Counsel stated that Penalty of Rs.16lacs was levied @ 200% on &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO account of furnishing inaccurate particulars of income within the meaning of Section 271(1)(c) read with Expl- u/s 271(1)(c).

6.1) Our attention was drawn to the last page of the penalty order u/s 271(1)(c) of the Act, Ld. Counsel read out the following lines:

“Under these circumstances it can be easily established that the assessee has concealed the income and furnished inaccurate particulars of income which resulted in suppression of taxable income. Thus, it can be construed that by this willful act, the assessee did not disclose the correct income.

In view of the above and after considering all the facts and circumstances of the case, I am of the opinion that the assesee has furnished inaccurate particulars of income for the year under consideration within the meaning of Section 271(1)© read with Explanation 1 thereto, of the Income-tax Act 1961 on and has thereby rendered itself liable of penalty u/s 271(1)(c) of the Income-tax Act.”

6.2) Ld Counsel submitted that the "books of accounts were not rejected, in the assessment order, though satisfaction of penalty per-se was in-built due to See 271(1B), there was no mention whether penalty was initiated for furnishing of inaccurate particulars or concealment of income. The Ld Counsel brought our &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO attention to the notice I.T.N.S-29 i.e the notice issued under section 274 read with section 271 of the Income Tax Act, 1961 dated 30.12.2008 and the Show cause notice dt : 17-3-2011 copies of which are placed at page 8 to 59 of the paper book of A Y:

06-07 and mentioned that the Assessing Officer has not specified if the notice was issued for “concealment of the particulars of income” or “furnishing inaccurate particulars of such income.”

6.3) It was further submitted that the penalty was levied on both the accounts i.e furnishing inaccurate particulars and concealment of income. The Ld. Counsel stated that Expl-l is related to concealment of income and nor for inaccurate particulars of income. Thus, the Ld Counsel argued stating that the Assessing Officer is not clear, at the time of initiating the penalty whether the proceedings are initiated for "concealment of particulars of income" or "For furnishing the inaccurate particulars of such income". The AO is again not clear in his mind when he issued the notice U/S

7) On the other hand, Ld DR argued vehemently stating that on merits, this is the case of section 133A of the Act, where a loose paper Page No. 17, was found and the assessee had concealed income which was detected due to the survey and was sustained by the ITAT. The Ld. DR stated that not mentioning the exact limb was at best a technical defect and that both the limbs at times, merged into one domain, therefore, on merits the penalty is sustainable.

8) We have heard counsels for both the parties and perused the material placed on record and also gone though the orders passed by Revenue Authorities as well as the judgments cited before us. On the preliminary issue, we find that the Tribunal can adjudicate the appeals on the grounds of legal arguments without going into the merits of the penalties levied by the AO in this year. Admittedly, this is the case, where there was an operation u/s 133A of the Act and a loose paper - Page No. 17 - was found.

Based on this loose paper "Page No. 17" additions were made. Without going into the merits, at the outset, we have under taken the assessee's legal propositions whether the penalty is sustainable on legalities/technicalities, considering the cited judgment of the Hon'ble Kamataka High Court in the case Qf Manjunatha Cotton & Ginning Factory (supra) & the co-ordinate bench ruling in the case of Samson Perinchery vs ACIT ( &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO ITA 4625-4630IM/2013 ) & Dhami Developers vs ACIT [(2015) 61 taxmann.com 208 in to 18511M12012 }.

8.1) 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 para 3 page 7 of the assessment order which reads as under:

" In view of the above, it is crystal clear that the assessee has suppressed his true and correct income of professional receipt. Hence Rs

24,36,191/- being the difference between total receipt shown in P & L ale for the year ended and total receipt as per page no. 17 ( sl No. 25 to 36) is treated as assessee's income from professional and added to the total income of the assesseee. Penalty proceedings u/s 271 (1)( c) is initiated separately.”

Further in last part of the assessment order it is mentioned" Issue notice u/s 274 r. w.s 271 (l)(c) of the 1. TAct"

8.2) From the above and keeping in mind that books were not rejected, the penalty was to be initiated either for "furnishing inaccurate particulars of income" or for "concealment of income". The AO is under obligation to specify the same and should not leave the scope for imaginations and surmises. Admittedly the satisfaction need not be in any particular descriptive manner due to Sec. 271(1B), but the limb needs to &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO be mentioned. But no such specific limb is mentioned, as evident. At the same time in the penalty order, we find that the penalty was actually levied both for furnishing inaccurate particulars of income and concealment of income as per Expln-1, which is evident from the last page of the penalty order which reads as under:

"Under these circumstances it can be easily established that the assessee has concealed the income and furnished inaccurate particulars of income which resulted in suppression of taxable income. Thus it can be construed that by this willful act, the assessee did not disclose the correct income.

In view of the above and after considering all the facts and circumstances of the case, I am of the opinion that the assessee has furnished inaccurate particulars of income for the year under consideration within the meaning of Section 271 (1)(c) read with Explanation 1 thereto, of the Income-tax Act 1961 on and has thereby rendered itself liable for penalty u/s 271 (1)( c) of the Income-tax Act."

8.3) 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" &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO The AO has not bothered to fill or strike off, the blanks with appropriate limb of the provisions of section 271 (1) (c) of the Act. So also show cause notice dt : 17-03-2011 does not contain any specific limb.

8.4) The above extracts reveal that the AO has not applied his mind to the fact as to for which reason/limb of the penalty, the notices were issued. The above documents reveal that the penalty proceedings were initiated for without any mention of the limb which can mean both or none of the limbs, however the penalty was levied or furnishing inaccurate particulars and concealment of income.

8.5) In this regard, we have perused the said paras 59 to 61 of the Hon'ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory (supra) and the relevant portion is reproduced as under :-

" NOTICE UNDER SECTION 274

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 &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO not be discerned from the said order and if it is a case of relying on deeming provision contained in Explanation-l 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(l)(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 1 00% 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.

&2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO 60. Clause (c) deals with two specific offences, that is to say, concealing particulars of income pr 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 o 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.

&2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO 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 Pai reported in 292 fIR 11 at page

19 has held that concealment of income and furnishing inaccurate &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO 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 VIRGO MARKETING reported in 171 Taxmn 156, has help 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.”

9) In the coordinate bench case of Samson Perinchery (supra), the ITAT Mumbai has relied on the Manjunatha case and decided accordingly on similar legal issues. So also in the case of Dharnee Developers (supra) the ITAT Mumbai decided accordingly on legal issues. In a plethora of cases namely Manu Engineering 122 ITR 306, Whiteford India Ltd (ITA 498/2013), Jyoti Ltd (ITA 342/2013) - All Gujarat High court cases and Virgo Marketing (Delhi High Court 171 Taxman 156), it has been consistently held that absence of clear finding of the limb or inappropriate change of limbs does not justify levy of penalty. On the proposition that the exact limb must be written or struck of in the notice u/s 274 , We rely on the Kolkatta Tribunal case of Suvaprasanna Bhatacharya vs ACIT { ITA 13031K01l2010 dt : 6-11-15 for Asst year &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO : 06-07. Refered para 8 , 8.1 , 8.2 on pages 15 to 20 therein}. On the proposition that Expl-1 related to concealment of income, we rely on the ITAT Indore case of Nepa Ltd {(20 15) 58 taxmann. com 137 dt: 13-10-14}. In the instant cases also, we have noticed that the Assessing Officer has initiated penalty proceedings without mentioning any limb of section 271(1)(c) of the Act, neither mentioned the limb in the See 274 notice or show cause notice, but has levied penalty on both the limbs of See 271 (1 )( c). Consistent with the view expressed by the Tribunal and the High Courts, we hold that the impugned penalty levied in the year under consideration is not sustainable. Hence, we do not find it necessary to address the issues urged on merits.

Accordingly we set aside the orders of the learned Commissioner of Income-tax (Appeals) and direct the Assessing Officer to delete the penalty levied under section 271 (1)(c) of the Act for the year under consideration. Therefore, the ground on the legal issues raised are allowed. - A.Y 2007-08 : In this appeal the grounds raised by the assessee are similar to AY. 06-07 with the following additional ground namely:

“In the facts & circumstances of the case and in law, the Ld.CIT(A) has erred in upholding the penalty even when the appeal before the Hon. High court was pending admission.”

&2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO 10) The Ld. Counsel stated that the Appeal, for this year, before the Hon. Bombay High Court was admitted on the question of law (F) namely " Whether in the present facts and circumstances of the case and in law, the Tribunal erred in upholding the action of the Respondent, whereby he estimated the professional receipt of the Appellant for the whole fear based on the figures mentioned in the loose paper (page NO.17) for part of the year only” as per the High Court order dt:24-3-2014 in of 2014. The Ld. Counsel stated that relying on the Mumbai Tribunal judgement in the case of Nayan Builders ( ITA No. 2379/Mum/2009 for Asst year 1997-98 Dt : 18-3-2011 ) as affirmed by the Hon. Bombay High Court ( ITA No. 415/2012 dt: 8-7-2014), since the impugned quantum additions in respect of the current proceedings, were of a debatable nature and the appeal was admitted by the Hon. High court, penalty is not exigible under 271 (l )( c). On the other technicalities akin to A Y: 06-07, the Ld. Counsel submitted that in this year the penalty was initiated for concealment of income ( as per Para #11 of the asst order) but was finally levied for inaccurate particulars and concealment of income. The Ld. Counsel also submits that Notice u/s 274 dt: 30-12-09 and the SCN dt: 16-3-2012 ( PB/25-26) not clear of the limb. The Ld. Counsel also stated that for the current year the books were rejected and that the CIT(A) order was on the same footing as AY:06-07. He relied on the same case laws as for AY: 06-07 and stated that no penalty was exigible in the case. &2235/M/14 (A.Y. 07-08 &06-07) Dr. Dinesh Jain vs. ITO 11) We have heard both the parties and perused the orders of the Revenue Authorities as well as the judgment cited by the Ld. Counsel. On the preliminary issue, we find that the Tribunal can adjudicate the appeals on the grounds of legal arguments without going into the merits of the penalties levied by the AO in this year. We rely on our finding/ observations, on the legal and technical part, as in AY:06-07. Accordingly we set aside the orders of the learned Commissioner of Income-tax (Appeals) and direct the Assessing Officer to delete the penalty levied under section 271(1)(c) of the Act for the year under consideration. Therefore, the ground on the legal issues raised are allowed.

12) In the result, the appeals filed by the assessee are allowed.

Order pronounced in the open court on 3rd March, 2016