SRI VIJAY PRASAD , WEST SINGHBHUM V. DCIT C.C.-1 , RANCHI

ITA 155/RAN/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1405 (ITAT-RANCHI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 28-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL ACIT
• Keywords: Retrospective amendment; Question of law; Set aside
• Section: 271(1)(c); 201; 274; 27

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH , RANCHI , BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER ./ ITA NO. 15 5 / RAN /20 1 8 ( / ASSE SSMENT YEAR : 20 0 8 - 20 09 ) SRI VIJAY PRASAD, 2RF/68, RUSSI MODI GATE , NEAR SBI ATM, NOAMUNDI, WEST SINGHBHUM - 83 3221 VS. DCIT, CENTRAL CIRCLE - 1, RANCHI ./ ./ PAN/GIR NO. : A I LPP 02 28 L ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI DEVESH PODDAR, ADVOCATE /REVENUE BY : SHRI P.K.MONDAL , ACIT( DR ) / DATE OF HEARING : 2 1 / 0 5 /201 9 / DATE OF PRONOUNCEMENT 21 / 0 5 /201 9 / O R D E R TH IS A PPEAL HA S BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), PATNA - 3 , DATE D 16 .03.2018 FOR THE ASSESSMENT YEAR 200 8 - 20 09 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN LEVYING PENALTY U/S.271(1)(C) OF THE ACT OF RS. 73,714 / - . 3. AT THE OUTSET, LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED BEFORE US COPY OF NOTICE ISSUED U/S. 274 R.W.S. 271(1)(C) OF THE ACT DATED 28 .12.2011 , COPY OF WHICH IS PLACED ON RECORD AND POINTED OUT THEREFROM THAT IN THE SAID NOTICE, THE ASSESSING OFFICER HAS STATED AS UNDER: 'WHERE AS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 200 8 - 0 9 , IT APPEARS TO ME THAT YOU: - ................ ITA NO . 15 5 / R AN /201 8 2 HAVE CONCEALED THE PARTIC ULARS OF YOUR INCOME OR....... FURNISHED INACCURATE PARTICULARS OF SUCH INCOME.' 4. HE SUBMITTED THAT IT IS NOT CLEAR FROM THE SAID NOTICE ISSUED U/S. 274 R.W.S. 271(1)(C) OF THE ACT BY THE ASSESSING OFFICER WHETHER THE SHOW CAUSE IS ISSUED TO THE ASSESSEE FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 5. HE SUBMITTED THAT THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SSA 'S. EMARLD MEADOWS DATED 11 TH JANU ARY, 2017 PASSED IN SPECIAL LEAVE TO APPEAL (CC NO.11485/2016)/73 TAXMANN.COM 248 (SC) HAS HELD THAT OMISSION BY THE AO TO EXPLICITLY SPECIFY IN THE PENALTY NOTICE AS TO WHETHER PENALTY PROCEEDINGS ARE BEING INITIATED FOR FURNISHING OF INACCURATE PARTICULA RS OR FOR CONCEALMENT OF INCOME MAKES THE PENALTY ORDER LIABLE FOR CANCELLATION. HENCE, HE SUBMITTED THAT PENALTY OF RS. 73,714 / - IMPOSED BY THE ASSESSING OFFICER U/S.271(1)(C) IS, THEREFORE, LIABLE TO BE CANCELLED. 6. THE DEPARTMENTAL REPRESENTATIVE COUL D NOT CONTROVERT THE ABOVE SUBMISSION OF LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 7. I HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD OF THE TRIBUNAL . I FIND THAT THE FACTS IN THE PRESENT APPEAL ARE NOT IN DISPUTE AND THE ASSESSING OFFICER IN THE ORDER PASSED U/S.271(1)(C) DATED 29.06.2012 LEVIED PENALTY OF RS. RS. 73,714 / - . 8. HON'BLE APEX COURT VIDE JUDGMENT IN CASE OF M/S. SSA'S EMERALD MEADOWS, (2016) 73 TAXMANN.CO M 248(SC) DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE REVENUE AGAINST THE JUDGMENT RENDERED BY HON'BLE ITA NO . 15 5 / R AN /201 8 3 HIGH COURT OF KARNATAKA WHEREBY IDENTICAL ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. OPERATIVE PART OF THE JUDGMENT IN CASE OF M/S. SSA'S EMERALD MEADOWS (SUPRA) DECIDED BY HON'BLE HIGH COURT OF KARNATAKA IS REPRODUCED BELOW : - '2. THIS APPEAL HAS BEEN FILED RAISING THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW: (1) WHETHER, OMISSION IF ASSESSING OFFICER TO EXPLICITLY MENTION THAT PENALTY PROCEEDINGS ARE BEING INITIATED FOR FURNISHING O F INACCURATE PARTICULARS OR THAT FOR CONCEALMENT OF INCOME MAKES THE PENALTY ORDER LIABLE FOR CANCELLATION EVEN WHEN IT HAS BEEN PROVED BEYOND REASONABLE DOUBT THAT THE ASSESSEE HAD CONCEALED INCOME IN THE FACTS AND CIRC UMSTANCES OF THE CASE? (2 WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN LAW IN. HOLDING THAT THE PENALTY NOTICE UNDER SECTION 274 R.W.S. 271(L)(C) IS HAD IN L AW AND. INVALID IN SPITE THE AMENDMENT OF SECTION 271 (1 B) WITH RETROSPECTIVE EFFECT AND BY VIRTUE OF THE AMENDMENT, THE ASSESSING OFFICER HAS INITIATED THE PENALTY BY PROPERLY RECORDING THE SATISFACTION FOR THE SAME? (3) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN DECIDING THE APPEALS AGAINST THE REVENUE ON THE BASIS OF NOTICE ISSUED, UNDER SECTION 274 WITHO UT TAKING INTO CONSIDERATION THE ASSESSMENT ORDER WHEN THE ASSESSING OFFICER HAS SPECIFIED THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME? 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICE R UNDER SECTION 274 READ WITH SECTION 271( 1 )(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT') TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(L)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. .THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE, HAS RELIED 01 THE DERISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE OF COMMISSIONER OR INCOME TAX - VS - MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDGMENT OF THE DIVISION BENCH OF THIS COURT, WE A RE OF THE OPINION, NO SUBSTANTIAL QUESTION OF LAW ARISES IN THIS APPEAL FOR ITA NO . 15 5 / R AN /201 8 4 DETERMINATION BY THIS COURT, THE APPEAL IS ACCORDINGLY DISMISSED.' 9. BARE PERUSAL OF THE NOTICE ISSUED U/S 274 R.W.S. 27 1 ( 1 )(C) OF THE ACT APPARENTLY GOES TO PROVE THAT THE ASSESS ING OFFICER INITIATED THE PENALTY PROCEEDINGS BY ISSUING THE NOTICE U/S 274/271(1)(C) OF THE ACT WITHOUT SPECIFYING THE ASSESSEE HAS CONCEALED ''PARTICULARS OF INCOME' OR ASSESSEE HAS FURNISHED 'INACCURATE PARTICULARS OF INCOME', SO AS TO PROVIDE ADEQUATE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE SHOW CAUSE NOTICE. RATHER NOTICE IN THIS CASE HAS BEEN ISSUED IN A STEREOTYPED MANNER WITHOUT APPLYING ANY MIND WHICH IS BAD IN LAW, HENCE IS NOT A VALID NOTICE SUFFICIENT TO IMPOSE PENALTY U/S 271(1)(C) OF THE AC T. 10. THE PENALTY PROVISIONS OF SECTION 27 1 ( 1 )(C) OF THE ACT ARE ATTRACTED WHERE THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IT IS ALSO A WE LL - ACCEPTED PROPOSITION THAT THE AFORESAID TWO LIMBS OF SECTION 271( 1 )(C) OF THE ACT CARRY DIFFERENT MEANINGS. THEREFORE, IT WAS IMPERATIVE FOR THE ASSESSING OFFICER TO STRIKE - OFF THE IRRELEVANT LIMB SO AS TO MAKE THE ASSESSEE AWARE AS TO WHAT IS THE CHARGE MADE AGAINST HIM SO THAT HE CAN RESPOND ACCORDINGLY. THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY, 359 ITR 565 (KAR) OBSERVED THAT THE LEVY OF PENALTY HAS TO BE CLEAR AS TO THE LIMB UNDER WHICH IT IS BEING LEVIED. AS PER HON'BLE HIGH COURT, WHERE THE ASSESSING OFFICER PROPOSED TO INVOKE FIRST LIMB BEING CONCEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. THE HON'BLE HIGH COURT HELD THAT THE STANDARD PROFO RMA OF NOTICE UNDER SECTION 274 OF THE ACT WITHOUT STRIKING OF THE IRRELEVANT CLAUSES ITA NO . 15 5 / R AN /201 8 5 WOULD LEAD TO AN INFERENCE OF NON - APPLICATION OF MIND BY THE ASSESSING OFFICER. THE HON'BLE SUPREME COURT IN THE CAS E OF DILIP N. SHROFF VS. JCIT, 291 ITR 519(SC) HAS ALSO NOTICED THAT WHERE THE ASSESSING OFFICER ISSUES NOTICE UNDER SECTION 274 OF THE ACT IN THE STANDARD PROFORMA AND THE INAPPROPRIATE WORDS ARE NOT D ELETED, THE SAME WOULD POSTULATE THAT THE ASSESSING OFFICER WAS NOT SURE AS TO WHETHER HE WAS TO PROCEED ON THE BASIS THAT THE ASSESSEE HAD CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. ACCORDING TO THE HON'BLE SUPR EME COURT, IN SUCH A SITUATION, LEVY OF PENALTY SUFFERS FROM NON - APPLICATION OF MIND. IN THE BACKGROUND OF THE AFORESAID LEGAL POSITION AND, HAVING REGARD TO THE MANNER IN WHICH THE ASSESSING OFFICER HAS ISSUED NOTICE UNDER SECTION 274 R.W.S. 271( 1 )(C) OF THE ACT DATED 31 .12.2011 WITHOUT STRIKING OFF THE IRRELEVANT WORDS, THE PENALTY PROCEEDINGS SHOW A NON - APPLICATION OF MIND BY THE ASSESSING OFFICER AND IS, THUS, UNSUSTAINABLE. 11. THE FACTS OF THE PR ESENT APPEAL ARE IDENTICAL TO THE FACTS OF THE CASE BEFORE THE HON'BLE SUPREME COURT IN THE CASE OF SSA'S. EMARLD MEADOWS(SUPRA) AND, THEREFORE, THE DECISION OF HON'BLE SUPREME COURT SQUARELY APPLIES TO THE CASE OF THE ASSESSEE. HENCE, RESPECTFULLY FOLLOWI NG THE SAME, WE SET ASIDE THE ORDER PASSED BY THE CIT(A) DATED 1 6 .03.2018 AND CANCEL THE ORDER OF THE ASSESSING OFFICER DATED 29.06.2012 LEVYING PENALTY OF RS. 73,714 / - AND ALLOW THE GROUND S OF APPEAL OF THE ASSESSEE. ITA NO . 15 5 / R AN /201 8 6 12 . IN THE RESULT, APPEAL OF THE ASSES SEE IS ALLOWED . O RDER PRONOUNCED IN THE OPEN COURT ON 21 / 05 / 201 9 . SD/ - ( CHANDRA MOHAN GARG ) / JUDICIAL MEMBER RANCHI ; DATED 21 / 05 /201 9 PRAKASH KUMAR MISHRA , S R.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, RANCHI 1. / THE APPELLANT - . SRI VIJAY PRASAD, 2RF/68, RUSSI MODI GATE, NEAR SBI ATM , NOAMUNDI, WEST SINGHBHUM - 833221 2. / THE RESPONDENT - DCIT, CENTRAL CIRCLE - 1, RANCHI 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, RANCHI 6. / GUARD FI LE. //TRUE COPY//