INA Bearings India Pvt. Ltd, Pune V. Deputy Commissioner of Income tax, Pune

ITA 149/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7888 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-04-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S B PRASAD
• Assessee Lawyers: NIRMIT M MEHTA
• Section: 271(1)(c); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO , AM . / ITA NO S . 1 47 & 149 /P U N/201 7 / ASSESSMENT YEAR S : 20 0 8 - 0 9 & 2009 - 10 INA BEARINGS INDIA PVT. LTD., PLOT NO.A3, TALEGAON INDUSTRIAL AREA, NAVALKH UMBRE, TAL. MAVAL TALEGAON, PUNE 41 0507 . / APPELLANT P AN: A A ACI7163H VS. THE DY . COMMISSIONER OF INCOME TAX, CIRCLE 11, PUNE . / RESPONDENT / APPELLANT BY : SHRI NIRMIT M. MEHTA / RESPONDENT BY : SHRI S.B. PRASAD, CIT / DATE OF HEARING : 09 . 0 4 .201 9 / DATE OF PRONOUNCEMENT: 22 . 0 4 .201 9 / ORDER PER SUSHMA CHOWLA, J M : BOTH THE APPEAL S FILED BY ASSESSEE ARE AGAINST SEPARATE ORDER S OF CIT (A) - 1 , PUNE , BOTH DATED 28 . 1 0 .20 1 6 RELATING TO ASSESSMENT YEAR S 200 8 - 0 9 AND 200 9 - 10 AGAINST PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. BOTH THE APPEALS OF ASSESSEE ON SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO S . 1 47 & 149 /P U N/20 1 7 INA BEARINGS INDIA PVT. LTD. 2 3. THE ASSESSEE IN ITA NO.147/PUN/2017, RELATING TO ASSESSMENT YEAR 2008 - 09 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - ALL THE GROUNDS OF APPEAL IN THIS APPEAL ARE MUTUALLY EXCLUSIVE AND WITHOUT PREJUDICE TO EACH OTHER. 1 . THE LEARNED COMMISSIONER OF INCO ME TAX (APPEALS) - 1 ['THE CIT(A)'], PUNE ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 11, PUNE ('THE AO') IN LEVYING PENALTY OF RS.12,35,500/ - U/S 271( 1 )(C) OF THE INCOME TAX ACT, 1961 ['THE ACT' ]. 2 . THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN LEVYING PENALTY DESPITE THE FACT THAT THE AO HAD LEVIED PENALTY WITHOUT CONSIDERING THE SUBMISSIONS MADE BY THE APPELLANT DURING THE PENALTY PROCEEDINGS AND THEREFORE THE PENALTY ORDER PASSED IS BAD IN LAW. 3 . THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN LEVYING PENALTY DESPITE THE FACT THAT THE AO FAILED TO POINT OUT WHETHER THE PENALTY IS LEVIED FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 4. THE ONLY ISSUE RAISED IN BOTH THE APPEAL S IS AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT . 5. BEFORE GOING INTO THE MERITS OF SAID LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT , WE REFER TO THE SATISFACTION RECORDED BY THE ASSESSING OFFICER WHILE INITIATING PENALTY PROCEEDINGS. THE ASSESSING OFFICER VIDE PARA 8 HAD HELD THAT SINCE THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF ITS INCOME, PENALTY PROCEEDINGS U /S 271(1)(C) OF THE I .T. ACT ARE BEING INITIATED SEPARATELY. WHILE LEVYING PENALTY, THE ASSESSING OFFICER VIDE PARA 8 OF PENALTY ORDER HAD HELD THAT THE ASSESSEE CASE IS THEREFORE, HIT BY THE PROVISIONS CONTAINED IN EXPLANATION 1 TO SECTION 271 (1)(C) OF THE ACT AND PENAL TY UNDER SECTION 271(1)(C) OF THE ACT IS LEVIABLE. IN VIEW OF NON RECORDING OF PROPER SATISFACTION BY THE ASSESSING OFFICER WHILE INITIATING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT, WHEREIN PENALTY WAS INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND THEREAFTER LEVIED PENALTY FOR CONCEALING THE INCOME; WE FIND THAT IN THE ABSENCE OF PROPER SATISFACTION BEING RECORDED AND ITA NO S . 1 47 & 149 /P U N/20 1 7 INA BEARINGS INDIA PVT. LTD. 3 PROPER SHOW CAUSE BEING GIVEN TO THE ASSESSEE, THERE IS NO MERIT IN LEVY OF AFORESAID PENALTY UNDER SECTIO N 271(1)(C) OF THE ACT. 6. WE FIND SUPPORT FROM THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. SHRI SAMSON PERINCHERY (2017) 392 ITR 4 (BOM), WHEREIN IT WAS HELD THAT WHERE THERE IS NO PROPER SATISFACTION FOR INITIATING PENALTY PROCEEDI NGS AND IN THE ABSENCE OF PROPER SHOW CAUSE NOTICE TO THE ASSESSEE, THERE IS NO MERIT IN LEVY OF PENALTY. ACCORDINGLY, WE DELETE THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT IN BOTH THE APPEALS . THE GROUND S OF APPEAL RAISED BY ASSESSEE IN BOTH THE APPEALS ARE THUS, ALLOWED. 7 . IN THE RESULT, BOTH THE APPEAL S OF ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON THIS 22 ND DAY OF APRIL , 201 9 . SD/ - SD/ - ( D.KARUNAKARA RAO ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 22 ND APRIL , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / TH E APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 1 , PUNE ; 4. THE PR. CI T - 4 , PUNE ; 5. 6. , , / DR A , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE