Konchada Ramesh Babu, Srikakulam V. The Income Tax Officer, Ward-1, Srikakulam

ITA 123/VIZ/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6330 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 15-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Principle of natural justice; Application of stay; Question of law; Capital Gains
• Section: 271(1)(c); 143(3); 133A; 201; 274; 27; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER S. A . NO. 09 & 10 / VIZ /201 9 AND ITA NOS. 123 & 124/VIZ/2019 (ASST. YEAR : 20 13 - 1 4 & 2014 - 15) KONCHADA RAMESH BABU, D.NO. 10 - 1 - 15, PROP. KOTESWARA STEEL CENTRE, 7 ROAD JUNCTION, GUDI VEEDHI, SRIKAKULAM. V S . IT O , WARD - 1, SRIKAKULAM . PAN NO. AEPPK 6505 F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SMT. SUMAN MALIK SR. DR DATE OF HEARING : 02 / 0 5 /201 9 . DATE OF PRONOUNCEMENT : 03 / 05 /201 9 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER THE SE S TAY A PPLICATIONS AND THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDER S OF COMMISSIONER OF INCOME TAX (APPEALS) - 6 , HYDERABAD , DATED 06 /0 2 /201 9 & 12/02/2019 FOR THE ASSESSMENT YEAR S 20 13 - 1 4 & 2014 - 15 RESPECTIVELY . SINCE FACTS AND ISSUES ARE COMMON, CLUBBED AND HEARD TOGETHER AND DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER. 2 S.A.NOS. 09 & 10/VIZ/2019 ITA NO S . 123 & 124/VIZ/2019 ( KONCHADA RAMESH BABU ) ITA NO.123/VIZ/2019 (A.Y. 2012 - 13) 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF STEEL WARE AND HOME APPLIANCES, FILED HIS RETURN OF INCOME BY DECLARING TOTAL INCOME OF RS. 2,94,970/ - . SUBSEQUENTLY, A SURVEY OPERATION WAS CONDUCTED UNDER SECTION 133A OF THE ACT ON 19/09/2014. DURING THE COURSE OF SURVEY PROCEEDIN GS, IT IS FOUND THAT THERE ARE CERTAIN DISCREPANCIES IN RESPECT OF SUNDRY CREDITORS AS WELL AS CASH PAYMENT MADE IN EXCESS OF RS. 20,000/ - . THE ASSESSEE WAS ASKED TO EXPLAIN THE SAME IN THE SURVEY PROCEEDINGS, IN RESPONSE THERETO, ASSESSEE OFFERED ADDITIONAL INCOME OF RS. 14,71,691/ - . SUBSEQUENTLY, T HE ASSESSING OFFICER ISSUED A PENALTY NOTICE UNDER S ECTION 274 R.W.S. 271 OF THE ACT , DATED 31/12/2016 . 3. ON APPEAL , LD. CIT(A) CONFIRMED THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER. 4 . AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 5 . L EARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE NOTICE ISSUED BY THE ASSESSING OFFIC ER DATED 31/12/2016 IS NOT CLEAR WHE THER NOTICE ISSUED UNDER SECTION 271 (1)(C) IS FOR CONCEALMENT OF INCOME OR FURNISH ED INACCURATE PARTICULARS. 3 S.A.NOS. 09 & 10/VIZ/2019 ITA NO S . 123 & 124/VIZ/2019 ( KONCHADA RAMESH BABU ) THEREFORE, THE NOTICE ISSUED BY THE ASSESSING OFFICER IS NOT A VALID NOTICE IN THE LIGHT OF THE LATEST JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS [(2016) 73 TAXMAN .COM 248 (SC)] AND ALSO THE HON'BLE JURISDICTIONAL HIGH COURT OF TELANGANA & A.P. IN I.T. T.A. NO. 684/2016 IN PCIT VS. SMT. BAISETTY REVATHI DATED 13 /07/2017 . 6 . ON THE OTHER HAND, L EARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT AT THE TIME OF ISSUANCE OF NOTICE, THE ASSESSING OFFICER IS NOT SURE ABOUT THE PENALTY EITHER FOR CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS. THEREFORE, IT IS A PREMATURE NOTICE AND SUB MITTED THAT THE NOTICE ISSUED BY THE ASSESSING OFFICER IS A VALID NOTICE. 7 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 8. THE ONLY ISSUE FOR ADJUDICATION BEFORE US IS W HE THER THE NOTICE ISSU ED BY THE ASSESSING OFFICER DATED 28 / 11 /201 1 IS VALID OR NOT . FOR THE SAKE OF CONVENIENCE , THE NOTICE IS EXTRACTED AS UNDER: - WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 20 13 - 1 4 , IT APPEARS TO ME THAT YOU X X X X X ** HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 4 S.A.NOS. 09 & 10/VIZ/2019 ITA NO S . 123 & 124/VIZ/2019 ( KONCHADA RAMESH BABU ) 9. FROM THE ABOVE, IT IS NOT CLEAR WHETHER ASSESSING OFFICER HAS INITIATED PENALTY PROCEEDINGS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHED INACCURATE PARTICULARS. THEREFORE, THE NOTICE ISSUED BY THE ASSESSING OFFICER IS A VAGUE NOTICE AND IS LIABLE TO BE QUASHED IN THE LIGHT OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SMT. BAISETTY REVATHI (SUPRA) AND ALSO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA) . THE COORDINATE BENCH OF THE VISAKHAPATNAM TRIBUNAL IN THE CASE OF KONCHADA SREERAM VS. ITO IN ITA NO. 388/VIZ/2015 , BY ORDER DATED 06/10/2017 HAS CONSIDER ED THE V ALIDITY OF NOTICE BY FOLLO W ING THE ABOVE REFERRED TO JUDGMENT S AND HELD THAT NOTICE ISSUED BY THE ASSESSING OFFICER IS NOT A VALID NOTICE AND ACCORDINGLY QUASHED. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE ORDER IS EXTRACTED AS UNDER: - 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THIS CASE, THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME. THE DEPARTMENT HAS CONDUCTED THE SURVEY U/S 133A AND COMPLETED THE ASSESSMENT U/S 143(3) ON TOTAL INCOME OF RS.15,43,04 1/ - AND INITIATED PENALTY PROCEEDINGS U/S 271(1)(C). THE FACT IS THAT LONG TERM CAPITAL GAINS FOR SALE OF THE PROPERTY HAVE COME TO THE NOTICE OF THE ASSESSING OFFICER BECAUSE OF THE EFFORTS MADE BY THE DEPARTMENT. THEREFORE, THE AO HAS INITIATED THE PENA LTY PROCEEDINGS U/S 271(1)(C) AND ISSUED SHOW CAUSE NOTICE IN THE PRINTED PROFORMA OF PENALTY. THE AO HAS ISSUED THE PENALTY NOTICE WHICH READS AS UNDER : WHEREAS IN THE COURSE OF THE PROCEEDING BEFORE ME FOR THE ASST. YEAR 2007 - 08 IT APPEARS TO ME THAT Y OU HAVE CONCEALED THE 5 S.A.NOS. 09 & 10/VIZ/2019 ITA NO S . 123 & 124/VIZ/2019 ( KONCHADA RAMESH BABU ) PARTICULARS OF YOUR SOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 6.1. FROM THE NOTICE ISSUED BY THE AO, IT IS OBSERVED THAT THE ASSESSING OFFICER HAD ISSUED THE NOTICE FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACC URATE PARTICULARS. AS PER THE NOTICE, THE ASSESSING OFFICER WAS NOT SURE OF WHICH LIMB OF THE OFFENCE HE SOUGHT THE EXPLANATION FROM THE ASSESSEE, WHETHER IT WAS FOR THE CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS. AS PER THE DECISI ON OF THE HONBLE JURISDICTIONAL HIGH COURT CITED, FOR STARTING THE PENALTY PROCEEDINGS, THE CONDITION PRECEDENT IS THAT THE ASSESSING OFFICER MUST BE SATISFIED THAT A PERSON HAS EITHER CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTIC ULARS OF SUCH INCOME. THE PERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED IN SECTION 271 SHOULD BE MADE AWARE OF THE GROUNDS ON WHICH IMPOSITION OF PENALTY IS PROPOSED AS HE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HAVE THE FULL OPPORTUNITY TO MEET THE CASE OF THE REVENUE SO AS TO SHOW THAT THE CONDITIONS STIPULATED IN SECTION 271(1)(C) DO NOT EXIST AND THAT HE IS NOT LIABLE TO PAY THE PENALTY. THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE LAW CITED HELD THAT THE PRACTICE OF THE REVENUE IN S ENDING THE PRINTED FORM WHERE ALL THE GROUNDS MENTIONED IN 271(1)(C) ARE MENTIONED WOULD NOT SATISFY THE REQUIREMENT OF LAW WHEN THE CONSEQUENCE OF THE ASSESSEE NOT REBUTTING THE INITIAL PRESUMPTION IS SERIOUS IN NATURE AND HAS TO PAY THE PENALTY RANGING F ROM 100% TO 300% OF THE TAX LIABILITY. AS THE PROVISIONS OF SECTION 271(1)(C) HAVE TO BE STRICTLY CONSTRUED, THE HONBLE HIGH COURT OF KARNATAKA MANDATED THAT THE NOTICE ISSUED SHOULD BE SET OUT THE GROUNDS WHICH THE ASSESSEE HAS TO MEET SPECIFICALLY, OT HERWISE THE PRINCIPLES OF NATURAL JUSTICE WOULD BE OFFENDED AS THE SHOW CAUSE NOTICE WOULD BE VAGUE. ON THE SIMILAR FACTS, HONBLE SUPREME COURT DISMISSED THE SLP IN THE CASE OF SSAS EMERALD MEADOWS (2016) 73 TAXMAN.COM 248(SC). LD. DRS ARGUMENT THAT THE CASE IS DISTINGUISHABLE ON FACTS IS NOT ACCEPTABLE SINCE THE LD. DR RELIED ON THE PASSING OBSERVATION OF THE HONBLE HIGH COURT OF AP. IN THE ASSESSEES CASE, THE ISSUE IS THE DEFECTIVE NOTICE U/S 271(1)(C) BUT NOT THE PENALTY ORDER. UNLESS THE NOTICE ISSUED U/S 271(1)(C) IS VALID THE PENALTY ORDER CANNOT BE HELD TO BE VALID. THE ASSESSING OFFICER DID NOT STRIKE OFF THE IRRELEVANT COLUMN IN THE NOTICE AND MADE KNOWN THE ASSESSEE WHETHER THE PENALTY WAS INITIATED FOR THE CONCEALMENT OF INCOME OR FOR FU RNISHING THE INACCURATE PARTICULARS. IN THE ASSESSMENT ORDER ALSO THE AO SIMPLY RECORDED THAT THE PENALTY PROCEEDINGS U/S 271(1)(C) ARE INITIATED SEPARATELY. NEITHER IN THE ASSESSMENT ORDER NOR IN THE PENALTY NOTICE, THE ASSESSING OFFICER HAS PUT THE ASS ESSEE ON NOTICE FOR WHICH OFFENCE, THE PENALTY U/S 271 WAS INITIATED. THEREFORE, THE CASE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT OF CITED (SUPRA) WHEREIN THE HONBLE HIGH COURT HELD AS UNDER: ON PRINCIPLE, WHEN PENA LTY PROCEEDINGS ARE SOUGHT TO BE INITIATED BY THE REVENUE UNDER SECTION 271(1)(C) OF THE ACT OF 1961, THE SPECIFIC GROUND WHICH FORMS THE FOUNDATION THEREFORE HAS TO BE SPELT OUT IN CLEAR TERMS OTHERWISE , ON 6 S.A.NOS. 09 & 10/VIZ/2019 ITA NO S . 123 & 124/VIZ/2019 ( KONCHADA RAMESH BABU ) ASSESEE WOULD NOT HAVE PROPER OPPORTUNITY TO PUT FORTH HIS DEFENCE. WHEN THE PROCEEDINGS ARE PENAL IN NATURE RESULTING IN IMPOSITION OF PENALTY RANGING FROM 100% TO 300% OF THE TAX LIABILITY, THE CHARGE MUST BE UNEQUIVOCAL AND UNAMBIGUOUS. WHEN THE CHARGE IS EITHER CONCEALMENT OF PARTICULARS OF INCOME O R FURNISHING OF INACCURATE PARTICULARS THEREOF , THE REVENUE MUST SPECI F Y AS TO WHICH ONE OF THE TWO IS SOUGHT TO BE PRESSED INTO SERVICE AND CANNOT BE PERMITTED TO CLUB BOTH BY INTERJECTING AN 'OR' BETWEEN THE TWO, AS IN THE PRESENT CASE. THIS AMBIGUITY IN THE SHOW - CAUSE NOTICE IS FURTHER COMPOUNDED PRESENTLY BY THE CONFUSED FINDING OF THE ASSESSING OFFICER THAT HE WAS SATISFIED THAT THE ASSESSEE WAS GUILTY OF BOTH. WE ARE THEREFORE OF THE OPINION THAT THE ORDER UNDER APPEAL DOES NOT BROOK INTERFERENCE ON ANY GROUND. WE FIND NO QUESTION OF LAW, MUCH LESS A SUBSTANTIAL ONE, ARISING FOR CONSIDERATION WARRANTING ADMISSION OF THIS APPEAL. 6.2. ON THE SIMILAR FACTS, THE COORDINATE BENCH OF ITAT, VISAKHAPATNAM IN ITA NO.229/VIZ/2015 IN THE CASE OF NARAYANA REDDY ENTERPRISES, FOLLOWING THE ORDER OF THE COORDINATE BENCH IN THE CASE OF SMT. MAKINA ANNAPURNA VS. ITO, VISAKHAPATNAM IN ITA NOS.604 & 605 /VIZAG/2014 DATED 2.2.2017 HELD THAT NON - STRIKING OF THE IRRELEVANT COLUMN RENDERS THE NOTICE ISSUED U/S 271 AS INVALID. RESPECTFULLY, FOLLOWING THE DECISION OF THE HONBLE AP HIGH COURT CITED SUPRA AND THE DECISION OF THIS TRIBUNAL CITED (SUPRA), WE HOLD THAT THE NOTICE ISSUED U/S 271 IS INVALID AND CONSEQUENT PENALTY IMPOSED BY THE AO IS CANCELLED. 1 0 . T HEREFORE , RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA) AND ALSO THE DECISION OF HON'BLE TELANGANA & A.P. HIGH COURT IN THE CASE OF SMT. BAISETTY REVATHI (SUPRA) AND ALSO THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF KONCHADA SREERAM (SUPRA) , WE HOLD THAT THE NOTICE ISSUED UNDER SECTION 274 READ WITH SECTION 27 1 I S INVALID AND, THE RE FORE PENALTY IMPOSED BY THE ASSESSING OFFICER IS CANCELLED. THUS, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED. 7 S.A.NOS. 09 & 10/VIZ/2019 ITA NO S . 123 & 124/VIZ/2019 ( KONCHADA RAMESH BABU ) 1 1 . SO FAR AS ITA NO.124/VIZ/2019 IS CONCERNED, THE FACTS INVOLVED IN THIS APPEAL IS SIMILAR TO THE FACTS INVOLVED IN ITA NO. 123/VIZ/2019. THEREFORE, OUR DECISION IN ITA NO. 123/VIZ/2019 SHALL APPLY MUTATIS MUTANDIS TO THIS APPEAL ALSO. 1 2 . SO FAR AS STAY APPLICATIONS ARE CONCERNED, IN VIEW OF OUR DECISION ABOVE , NO SEPARATE ADJUDICATION IS REQUIRED, THEREFORE SAME ARE DISMISSED AS INFRUCTUOUS. 1 3 . IN THE RESULT, APPEAL S FILED BY THE ASSESSEE ARE ALLOWED AND THAT OF STAY APPLICATIONS ARE DISMISSED . ORDER PRONOUNCED IN OPEN COURT ON TH IS 0 3 R D DAY OF MAY , 201 9 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 3 R D MAY , 201 8 . VR/ - COPY TO: 1. THE ASSESSEE KONCHADA RAMESH BABU, D.NO. 10 - 1 - 15, PROP. KOTESWARA STEEL CENTRE, 7 ROAD JUNCTION, GUDI VEEDHI, SRIKAKULAM. 2. THE REVENUE IT O , WARD - 1, SRIKAKULAM . 3. THE PR. CIT - 2 , VISAKHAPATNAM . 4. THE CIT(A) - 6 , HYDERABAD . 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.