TRIBHUWAN BAITHA, BHILAI V. DEPUTY COMMISSIONER OF INCOME TAX ,CIRCLE 1(1), BHILAI

ITA 160/RPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4239 (ITAT-RAIPUR)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 21-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R NAMDEV
• Assessee Lawyers: S R RAO
• Keywords: Initiation of penalty proceedings; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHU RY , JM . / I TA NO. 160 /RPR /20 18 / ASSESSMENT YEAR : 2012 - 13 SHRI TRIBHUWAN BAITHA, DAHLIA - 460, CHATTISHGARH HOUSING BOARD, TALPURI, RUABANDHA, BHILAI - 490006 (C.G.) PAN : ADWPB3666Q ....... / APPELLANT / V/S. THE DEP UTY COMMISSIONER OF INCOME TAX - 1(1), BHILAI ( C.G.) / RESPONDENT . / I TA NO. 152 /RPR /20 18 / ASSESSMENT YEAR : 2011 - 12 SMT. TULIKA TIWARI, 50/B, D - POCKET, MARODA SECTOR, BHILAI - 490 006 (C.G.) PAN : AAXPT1822E ....... / APPELLANT / V/S. THE INCOME TAX OFFICER - 3, AAYAKAR BHAWAN, CIVIC CENTER, BHILAI (C.G.) / RESPONDENT 2 ITA NO. 160 /RPR /20 18 ITA NO.152/RPR/2018 ITA NO. 270/RPR/ 2017 . / I TA NO. 270 /RPR /20 17 / ASSESSMENT YEAR : 2012 - 13 SHRI ASHWINI SHARMA, THROUGH K.K. S H ARM A , ATTORNEY , HOUSE NO.16, STREET - 2A, PHASE - 3, MAITRI NAGAR, RISALI BHILAI (C.G.) PAN : AOPPS8473Q ....... / APPELLANT / V/S. THE INCOME TAX OFFICER - 1(2), AAYAKAR BHAWAN, CIVIC CENTER, B HILAI (C.G.) / RESPONDENT A SSESSEE BY : SHRI S.R. RAO , REVENUE BY : SHRI R. NAMDEV / DATE OF HEARING : 10 .05 .2019 / DATE OF PRONOUNCEMENT : 10 .05 .2019 / ORDER PER BENCH : THESE THREE APPEALS PREFERRED BY THE DIFFERENT ASSESSEES EMANATES FROM THE RESPECTIVE ORDER S OF THE LD. CIT(APPEAL S) FOR THE ASSESSMENT YEARS AS CAPTIONED HEREINABOVE AS PER GROUNDS OF APPEAL ON RECORD. 3 ITA NO. 160 /RPR /20 18 ITA NO.152/RPR/2018 ITA NO. 270/RPR/ 2017 2. THE SE APPEALS WERE HEARD TOGETHER. SINCE THE ISSUES COMMON, FACTS ARE SIMILAR , THESE CASES ARE BEING DISPOSED OF VIDE THIS CONSOLIDATED ORDER. 3. IN ALL THESE CASES, THE COMMON GROUND TAKEN BY THE ASSESSEE IS THAT THE PENALTY ISSUE LEVIED U/S.271(1) (C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) IS NOT MAINTAINABLE SINCE NO SATISFACTION WAS RECORDED BY THE ASSESSING OFFICER AND EVEN NOTICE I SSUED U/S.274 R.W.S.271(1) (C) OF THE ACT, NO SPE CIFIC LIMB IS MENTIONED FOR WHICH PENALTY HAS BEEN LEVIED . IN ALL THESE CASES, THE LD. AR OF THE ASSESSEE HAS REFERRED FOLLOWING DECISIONS: I) CIT VS. SSA S EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC) II) CIT VS. MANJUNATHA COTTONS AND GINNING FACTORY, 359 ITR 565 (KAR.) III) K.V.S. PRAKASA RAO VS. DCIT - 1(1) IN ITA NO.123/RPR/2018 DATED 09.08.2018. THE BINDING PRINCIPLE WHICH COMES FROM ALL THESE DECI SIONS RELIED ON BY THE LD. AR OF THE ASSESSEE IS THAT A SPECIFIC SATISFACTION HAS TO BE RECORDED AND THAT SHOULD BE DEMONSTRATED FROM THE ASSESS MENT ORDER, PENALTY ORDER AND NOTICE I SSUED TO THE ASSESSEE U/S.274 R.W.S 271(1) (C) OF THE ACT. IF IN THIS DOCUMENTS, THERE IS ANY AMBIGUI TY OR THE SPECIFIC LIMB FOR WHICH PENALTY HAS BEEN LEVIED U/S.271(1) (C) , I S NOT SPECIFIC AND CRYSTAL CLEAR THEN IN SUCH SCENARIO , IMPOSITION OF PENALTY IS VOID AB - INITIO. 4 ITA NO. 160 /RPR /20 18 ITA NO.152/RPR/2018 ITA NO. 270/RPR/ 2017 3.1. THE LD. AR OF THE ASSESSEE RELIED ON THE LATEST JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SAMSON PER INCHERY REPORTED AS 392 ITR 4 ( BOM.) WHEREIN THE HON'BLE BOMBAY HIGH COURT HAS FOLLOWED THE VIEW OF KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATH COTTON & GINNING FACTORY REPORT ED IN 359 ITR 565(KAR.) WHEREIN IT WAS OBSERVED THAT THE HON'BLE SUPREME COUR T OF INDIA HAD HELD IN T. ASHOK PAI VS. CIT REPORTED AS 292 ITR 11 (SC) THAT ACT OF CONCEALMENT OF INCOME AND ACT OF FURNISHING INACCURATE PARTICULARS ARE TWO DIFFERENT THINGS. SINCE WHERE THE NOTICE DOES NOT SPECIFY FOR WHAT PENALTY IS BEING INITIATE D, THE LEVY OF PENALTY WAS HELD TO BE INVALID. THIS VIEW WAS FOLLOWED BY THE KARNATA KA HIGH COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS, 73 TAXMANN.COM 241( KAR.) AGAINST WHICH SUPREME COURT REJECTED THE REVENUES SLP. THE LD. AR FURTHER SUBMITTED T HAT AS OF NOW SO FAR AS THE HON'BLE BOMBAY HIGH COURT IS CONCERNED, THE NON - STRIKING OF IRRELEVANT PORTION OF THE LIMB IS NOT JUST A PROCEDURAL MISTAKE BUT IF SUCH EXERCISE IS NOT DONE AND IF THE NOTICE DOES NOT SPECIFY THE LIMB IN WHICH THE PENALT Y IS BEING LEVIED U/S.271(1)(C) OF THE ACT, IN SUCH SCENARIO, THE IMPOS ITION OF PENALTY SHALL BE VOID AB - INITIO . 4. PER CONTRA, TH E LD. DR HAS PLACED RELIANCE ON THE ORDERS OF THE SUB - ORDINATE AUTHORITIES. 5 ITA NO. 160 /RPR /20 18 ITA NO.152/RPR/2018 ITA NO. 270/RPR/ 2017 5. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS. THE LD. AR HAS POINTED OUT BEFORE US THAT THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SAMSON PERINCHERY (SUPRA.) HAS HELD THAT CONCEALMENT OF INCOME AND FURN ISHING OF INACCURATE PARTICULARS OF INCOME IN SECTION 271(1)(C) CARRY DIFFERENT MEANINGS /CONNOTATIONS AND THEREFORE, THE SATISFACTION OF THE ASSESSING OFFICER WITH REGARD TO ONLY ONE OF THE TWO BREACHES MENTIONED U/S.271(1)(C) FOR INITIATION OF PENALTY PROCEEDINGS WILL NOT WARRANT/PERMIT PENALTY BEING IMPOSED FOR THE OTHER. THE ORDER IMPOSING PENALTY HAS TO BE MADE ONLY ON THE GROUND OF WHICH THE PENALTY PROCEEDINGS HAS BEEN INITIATED, AND IT CANNOT BE ON A FRESH GROUND OF WHICH THE ASSESSEE HAS NO NOTI CE. THEREFORE, WHERE THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) FOR FURNISHING INACCURATE PARTICULARS OF INCOME, THE ORDER IMPOSING PENALTY FOR CONCEALMENT OF INCOME WAS NOT VALID. MEANING THEREBY TO OUR HUMBLE UNDERSTANDING, THE A SSESSEE SHOULD BE READY WITH HIS DEFENSE FOR WHICH PENALTY HAS BEEN LEVIED BY THE REVENUE AUTHORITY. IT COULD NOT BE GENERALLY DONE THAT FOR CONCEALMENT OF INCOME AND ALSO FOR FURNISHING INACCURATE PARTICULARS OF INCOME, PENALTY HAS BEEN LEVIED. THE L IMB FOR WHICH PENALTY IS LEVIED, SHOULD BE SPECIFIC ALLOWING OPPORTUNITY TO THE ASSESSEE TO GET READY WITH HIS DEFENSE. FURTHER, THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SAMSON 6 ITA NO. 160 /RPR /20 18 ITA NO.152/RPR/2018 ITA NO. 270/RPR/ 2017 PERINCHERY (SUPRA.) AS STATED BY THE LD. AR IS THE LATEST JUDGMENT ON THE ISSUE WHICH IS THEREFORE, RELEVANT. THE LD. DR DID NOT BRING ANY BINDING DECISIONS OF ANY OTHER HIGHER JUDICIAL FORUM CONTRARY TO THE DECISIONS RELIED ON BY THE LD. AR ON THE ISSUE. IN VIEW OF THE MATTER, R ESPECTFULLY, F OLLOWING THE DIRECTIONS AND RUL ING OF THE HIGHER JUDICIAL FORUM, WE SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) IN RESPECT OF ALL THE ASSESSEE S AS PER C AUSE TITLE HEREIN ABOVE AND DIRECT THE ASSESSING OFFICER FOR DELETION OF PENALTY FROM THE HANDS OF THE ASSESSEES. 6. IN THE RESULT, ALL THE APPEAL S OF THE ASSESS E ES IN ITA NO. 160 /RPR /20 18 , ITA NO.152/RPR/2018 AND ITA NO. 270/RPR/ 2017 ARE ALLOWED. ORDER PRO NOUNCED ON 10 TH DAY OF MA Y , 201 9 . SD/ - SD/ - ANIL CHATURVEDI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / RAIPUR ; / DATED : 10 TH MA Y, 2019 . SB 7 ITA NO. 160 /RPR /20 18 ITA NO.152/RPR/2018 ITA NO. 270/RPR/ 2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS) - II, RAIPUR. 4. THE PR. CIT - II, RAIPUR. 5. , , , / DR, ITAT, RAIPUR BENCH, RAIPUR . 6. / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, RAIPUR . 8 ITA NO. 160 /RPR /20 18 ITA NO.152/RPR/2018 ITA NO. 270/RPR/ 2017 DATE 1 DRAFT DICTATED ON 10 .05 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 10 .05 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER