Kashivishweswar Poultry and Agro Enterprises Pvt.Ltd, Pune V. Deputy Commissioner of Income-tax, Circle - 11(1), Pune

ITA 1145/PUN/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0352 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 25-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Assessee Lawyers: KIRAN B SANMANE
• Section: 271(1)(c)

Judgement Text

आयकर अपीलीय अिधकरण “ए” Ɋायपीठ पुणे मŐ। IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकरअपीलसं. / ITA No.1145/PUN/2018 िनधाᭅरणवषᭅ / Assessment Year : 2006-07 Kashivishweshwar Poultry & Agro Enterprises Pvt. Ltd., First Floor, B & C Wing, Shangrila Garden, Bund Garden Road, Pune – 411001. PAN: AABCK 5350 M Vs The Dy.CIT, Circle-11(1), Pune. Appellant/ Assessee Respondent /Revenue Assessee by Shri Kiran B Sanmane – AR Revenue by Shri S P Walimbe – DR Date of hearing 28/06/2022 Date of pronouncement /06/2022 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal filed by the Assessee is directed against the order of ld.Commissioner of Income Tax(Appeals)-9, Pune under section 271(1)(c) of the Income-tax Act, 1961 (hereinafter called as ‘the Act’) for the Assessment Year 2006-07 dated 27.04.2018. The Assessee has raised the following grounds of appeal: “1. The learned CIT(A) erred on facts and in law in upholding penalty of Rs.5,00,000 u/s 271(1)(c) of the Income Tax act. He failed to appreciate the facts and correct legal position in its proper perspective. 2. The appellant craves leave to add, alter, delete or substitute all or any of the above grounds of appeal.” ITA No.1145/PUN/2018 for A.Y. 2006-07 Kashivishweshwar Poultry & Agro Enterprises Pvt. Ltd., (A) 2 2. Brief facts of the case are that the Penalty under section 271(1)(c) of the Act has been levied against the assessee for A.Y.2006-07. The Assessee filed an appeal before Commissioner of Income-tax(Appeals), who has upheld the penalty levied by the Assessing Officer. 3. Aggrieved by the order of the ld.CIT(A), the Assessee has filed appeal before this Tribunal. 4. The only issue is levy of Penalty of Rs.5,00,000/- u/s.271(1)(c) of the Act. On perusal of the notice u/s 271(1)(c) dated 25.11.2008 issued by the DCIT, Circle-11, Pune, it is observed that the AO has not struck the appropriate words i.e. Concealed the particulars of Income or furnished Inaccurate particulars. 4.1 The Hon’ble Bombay High Court has held in the case of Ganga Iron & Steel Trading Co. v/s Commissioner of Income Tax. [2022] 135 taxmann.com 244 (Bombay) order dated 22.12.2021 as under: Quote, “10. We find that the law as laid down by the Full Bench applies on all fours to the facts of the present case as in the show cause notice dated 12-2-2008, the Assistant Commissioner of Income-tax is not clear as to whether there was concealment of particulars of income or that the Assessee had furnished inaccurate particulars of income. We therefore find that issuance of such show cause notice without specifying as to whether the Assessee had concealed particulars of his income or had furnished inaccurate ITA No.1145/PUN/2018 for A.Y. 2006-07 Kashivishweshwar Poultry & Agro Enterprises Pvt. Ltd., (A) 3 particulars of the same has resulted in vitiating the show cause notice. Heavy reliance was placed by the learned counsel for the Revenue on the decision in Mak Data (P.) Ltd. (supra) to urge that the penalty contemplated by section 271 (1) (c) of the said Act was in the nature of civil liability and mens rea was not essential therein. The decision in Dilip N. Shroff (supra) having been held as not laying down good law in Dharmendra Textile Processors Ltd. (supra), it was submitted that the show cause notice issued in the present proceedings was liable to be upheld. It may be noted that all the decisions relied upon by the learned counsel for the Revenue were considered by the Full Bench while answering the issues referred to it on reference. The Full Bench having considered these decisions and having answered the question as regards defect in the notice under section 271(1)(c) of the said Act resulting in vitiating the penalty proceedings, we find ourselves bound by the answers given by the Full Bench. It would not be permissible for us to disregard this aspect and take a different view of the matter. Accordingly substantial question of law no. III is answered by holding that since the show cause notice dated 12-2-2008 does not indicate whether there was concealment of particulars of income or furnishing of incorrect particulars of such income, the same would vitiate the penalty proceedings.” Unquote. 4.2 In the case under consideration also the AO has not struck the appropriate words in the penalty notice. Therefore, respectfully following the Hon’ble jurisdictional High Court’s order, it is held that the penalty u/s.271(1)(c) of the Act, is not maintainable. Hence, the Assessing Officer is directed to delete the penalty under section ITA No.1145/PUN/2018 for A.Y. 2006-07 Kashivishweshwar Poultry & Agro Enterprises Pvt. Ltd., (A) 4 271(1)(c) of the Act, accordingly, grounds of appeal raised by the Assessee are Allowed. 5. In the result, appeal of the Assessee is allowed. Order pronounced in the open Court on 29 th June, 2022. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 29 th June, 2022/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “ए” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकरअपीलीयअिधकरण, पुणे/ITAT, Pune.