Shri V rajesh Kumar , Chitradurga V. Income Tax Officer Ward-1 , Chitradurga

ITA 1422/BANG/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7799 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-04-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 19-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L V BHASKAR REDDY
• Keywords: Unexplained cash credit; Principle of natural justice; Initiation of penalty proceedings
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI JASON P BOAZ, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 1 422 /BANG/201 7 ASSESSMENT YEAR : 20 11 - 1 2 SHRI. V. RAJESH KUMAR, M/S. SHA PHOOLCHAND VIJAYRAJ, HEAD POST OFFICE ROAD, CHITRADURGA. PAN : A B OPR 2336 M VS. INCOME TAX OFFICER, WARD 1, CHITRADURGA. APPELLANT RESPONDENT ASSESSEE BY : SHRI. SANDEEP C, CA REVENUE BY : SHRI. L. V. BHASKAR REDDY, ADDL. CIT DATE OF HEARING : 04 . 0 4 .201 9 DATE OF PRONOUNCEMENT : 24 . 0 4 .201 9 O R D E R PER SHRI JASON P BOAZ, A.M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A), DAVANGERE, DATED 30.03.2017, UPHOLDING THE LEVY OF PENALTY OF RS.1,08,550/- UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) FOR THE ASSESSMENT YEAR 2011-12. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE AS UNDER: ITA NO. 1422/BANG/2017 PAGE 2 OF 8 2.1 THE ASSESSEE FILED HIS RETURN FOR ASSESSMENT YEAR 2011-12 ON 17.01.2012 DECLARING TOTAL INCOME OF RS.1,50,280/-. THE CASE WAS TAKEN UP FOR SCRUTINY FOR THIS ASSESSMENT YEAR AND THE ASSESSMENT WAS CONCLUDED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 31.12.2013, WHEREIN THE ASSESSEES INCOME WAS DETERMINED AT RS.8,47,960/-; IN VIEW OF AN ADDITION OF RS.6,94,000/- AS UNEXPLAINED CASH CREDITS AND RS.3,678/- AS INCOME FROM SHARE TRADING. 2.2 PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WAS INITIATED SIMULTANEOUSLY VIDE NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT OF EVEN DATE I.E., 31.12.2013 IN RESPECT OF THE AFORESAID ADDITION. AFTER CONSIDERING THE ASSESSEES REPLIES IN THE MATTER, THE AO PROCEEDED TO LEVY PENALTY OF RS.1,08,550/- UNDER SECTION 271(1)(C) OF THE ACT VIDE ORDER DATED 24.06.2014. ON APPEAL, THE CIT(A), DAVANGERE, VIDE THE IMPUGNED ORDER DATED 30.03.2017, UPHELD THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT BY THE ASSESSING OFFICER (AO). 3. AGGRIEVED BY THE ORDER OF THE CIT(A), DAVANGERE, DATED 30.03.2017 UPHOLDING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR ASSESSMENT YEAR 2011-12 IN THE CASE ON HAND, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL, WHEREIN IT HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), IN SO FAR IT IS PREJUDICIAL TO THE INTERESTS OF THE APPELLANT, IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE NOTICE ISSUED U/S 274 R.W.S 271(1)(C) OF THE ACT IS BAD IN LAW AS IT IS VAGUE AND DOES NOT STATE WHETHER THE APPELLANT HAS CONCEALED THE INCOME OR FURNISHED INACCURATE PARTICULARS. ITA NO. 1422/BANG/2017 PAGE 3 OF 8 3. THAT THE ASSESSMENT ORDER DOES NOT RECORD ANY SATISFACTION THAT THE APPELLANT HAS CONCEALED INCOME OR FURNISHED INACCURATE PARTICULARS AND THEREFORE, LEVY OF PENALTY U/S. 271(1)(C) IS BAD IN LAW. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACTS IN LEVYING PENALTY U/S. 271(1)(C) EVEN THOUGH THERE IS NEITHER CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACTS IN LEVYING OF PENALTY U/S. 271(1)(C) EVEN THOUGH THE ASSESSEE PAID THE TAX AND INTEREST ON ADDITIONAL INCOME BEFORE COMPLETION OF ASSESSMENT PROCEEDINGS. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO ONE ANOTHER AND THE APPELLANT CRAVES LEAVE OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), BANGALORE, TO ADD, DELETE, AMEND OR OTHERWISE MODIFY ONE OR MORE OF THE ABOVE GROUNDS EITHER BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 4. GROUND NO.2 4.1 AT THE OUTSET , THE LEARNED COUNSEL FOR THE ASSESSEE URGED GROUND NO.2 CONTENDING THAT THE CIT(A) OUGHT TO HAVE DELETED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT FOR ASSESSMENT YEARS 2011-12 FOLLOWING THE BINDING DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 365 (KAR); SINCE THE NOTICE U/S 274 R.W.S. 271 OF THE ACT FOR INITIATION OF PENALTY U/S 271(1)(C) OF THE ACT DATED 31.12.2013 WAS DEFECTIVE AND ISSUED WITHOUT ANY APPLICATION OF MIND BY THE AO, THE CONDITIONS PRECEDENT FOR A PASSING OF VALID PENALTY ORDERS U/S 271(1)(C) OF THE ACT WERE ABSENT. IN THIS REGARD, THE LEARNED AR DREW THE ATTENTION OF THE BENCH TO THE COPY OF THE IMPUGNED NOTICE, ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT DATED 31.12.2013 FOR ASSESSMENT YEAR 2011-12 FILED BY THE ASSESSEE, ITA NO. 1422/BANG/2017 PAGE 4 OF 8 AT PAGE 12 OF PAPER BOOK, TO DEMONSTRATE THAT THE SAID NOTICE WAS DEFECTIVE, IN AS MUCH AS IT DID NOT INDICATE WHETHER IT WAS ISSUED TO THE ASSESSEE FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN SUPPORT OF THE PROPOSITION THAT NOTICE ISSUED U/S 274 R.W.S. 271 OF THE ACT, WITHOUT SPECIFYING THE DEFAULT; I.E., WHETHER THE NOTICE IS ISSUED FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME; IS INVALID AND CONSEQUENTIAL PENALTY PROCEEDINGS / ORDERS ARE ALSO NOT VALID; THE LEARNED AR PLACED RELIANCE ON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF M/S. MANJUNATHA COTTON & GINNING FACTORY IN 359 ITR 365 (KAR). IT WAS PRAYED THAT IN THE LIGHT OF THE ABOVE JUDICIAL PRONOUNCEMENTS OF THE HONBLE KARNATAKA HIGH COURT (SUPRA), THE ORDERS LEVYING PENALTY U/S 271(1)(C) OF THE ACT FOR ASSESSMENT YEAR 2011-12 IN THE CASE ON HAND IS LIABLE TO BE QUASHED / CANCELLED. 4.2 PER CONTRA, THE LEARNED DR FOR REVENUE PLACED RELIANCE ON THE ORDERS OF THE AO AS BEING IN ORDER. 4.3.1 WE HAVE HEARD AND CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND SUBMISSIONS ON RECORD AND THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON AND GINNING FACTORY (SUPRA). THE NOTICE ISSUED BY THE AO U/S 274 R.WS 271 OF THE ACT DATED 31.12.2013 FOR INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR ASSESSMENT YEAR 2011-12 IN THE CASE ON HAND (COPY FILED BY THE LEARNED AR), HAS BEEN CAREFULLY PERUSED AND WE FIND THAT THE AO HAS NOT DELETED THE INAPPROPRIATE WORDS AND PORTIONS IN THE RELEVANT PARAGRAPH OF THE NOTICE; WHEREBY IT IS NOT CLEAR AS TO WHICH DEFAULT IS COMMITTED BY THE ASSESSEE, I.E., WHETHER IT IS FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALING PARTICULARS OF INCOME THAT THE PENALTY U/S 271(1)(C) OF THE ACT IS SOUGHT TO BE LEVIED. ITA NO. 1422/BANG/2017 PAGE 5 OF 8 4.3.2 THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF M/S MANJUNATHA COTTON & GINNING FACTORY IN (359 1TR 565) (KAR) HAS HELD THAT A NOTICE ISSUED U/S 274 R.WS 271 OF THE ACT WITHOUT SPECIFYING THE NATURE OF DEFAULT; I.E. WHETHER THE NOTICE IS ISSUED FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME; IS INVALID AND THE CONSEQUENTIAL PENALTY PROCEEDINGS/ORDERS ARE ALSO NOT VALID. THE RELEVANT PORTION OF THE AFORESAID JUDGMENT OF THE HON'BLE KARNATAKA HIGH COURT (SUPRA) AT PARAS 59 TO 61 ARE EXTRACTED HEREUNDER:- '59. 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 RASE OF RELYING ON DEEMING PROVISION CONTAINED IN EXPLANATION-I 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 OIL 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 (I)(C) C/A 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 TAX LIABILITY. AS THE SAID PROVISIONS HAVE TO BE HELD TO BE STANDBY 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 ITA NO. 1422/BANG/2017 PAGE 6 OF 8 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 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 PAL 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 M4NU ENGINEERING REPORTED IN 122 ITR 306 AND THE DELHI HIGH COURT IN THE CASE OF VIRGO IVL4RKETING REPORTED IN 171 TAXMAN 156, HAS HELD THAT PENALTY HAS TO BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE ACTION 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. ITA NO. 1422/BANG/2017 PAGE 7 OF 8 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.' 4.3.3 THE AFORESAID VIEW TAKEN BY THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA) WAS FOLLOWED BY THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF SSAS EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23/11/2015; WHEREIN THE HON'BLE COURT UPHELD THE ORDER OF CO-ORDINATE BENCH OF THIS TRIBUNAL, CANCELLING THE PENALTY LEVIED ON THE BASIS OF THE DEFECTIVE NOTICE ISSUED BY THE AO. REVENUE'S SLP FILED AGAINST THE SAID JUDGMENT OF THE HON'BLE HIGH COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA) HAS ALSO BEEN DISMISSED BY THE HON'BLE APEX COURT IN CC/I485/2016 DATED 5/8/2016. 4.3.4 RESPECTFULLY FOLLOWING THE JUDGMENTS OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASES OF M/S. MANJUNATHA COTTON & GINNING FACTORY (359 ITR 565) (KAR) AND SSAS EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23/11/2015, WE HOLD THAT THE NOTICE ISSUED BY THE AO U/S 274 R.W.S 271 OF THE ACT DATED 31.12.2013 FOR INITIATING PENALTY PROCEEDINGS FOR ASSESSMENT YEAR 2011-12 IS INVALID AND CONSEQUENTLY, THE PENALTY PROCEEDINGS CONDUCTED IN PURSUANCE THEREOF, ARE ALSO INVALID. WE THEREFORE CANCEL THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT FOR ASSESSMENT YEAR 2011-12. CONSEQUENTLY, GROUND NO.2 RAISED BY THE ASSESSEE IS ALLOWED. 5. IN VIEW OF OUR FINDING RENDERED IN RESPECT OF GROUND NO.2, THE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE ON MERITS OF THE LEVY OF PENALTY BECOME ACADEMIC IN NATURE AND DO NOT REQUIRE ADJUDICATION. ITA NO. 1422/BANG/2017 PAGE 8 OF 8 6. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF APRIL, 2019. SD/- SD/ - SD/ - (LALIET KUMAR) JUDICIAL MEMBER (JASON P BOAZ) ACCOUNTANT MEMBER BANGALORE. DATED: 24.04.2019. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.