Binaguri Tea Co. Pvt. Ltd., , Kolkata V. DCIT, Circle - 4(1), , Kolkata

ITA 2160/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7000 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 12-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Assessee Lawyers: PUJA SOMANI
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Question of law; Initiation of penalty proceedings; Set aside
• Section: 271(1)(c); 250; 32; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ITA NO.2160/KOL/2018 (A.Y: 2013-14) BINAGURI TEA CO. PVT. LTD. 238A, A.J.C. BOSE ROAD, 4 TH FLOOR, KOLKATA-700020 VS. DCIT, CIRCLE-4(1), KOLKATA ./ ./PAN/GIR NO. : AABCB 1008 P ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SMT. PUJA SOMANI, FCA REVENUE BY : SHRI RADHEY SHYAM, CIT DR / DATE OF HEARING : 04/04/2019 /DATE OF PRONOUNCEMENT: 26/04/2019 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PE RTAINING TO ASSESSMENT YEAR 2013-14, IS DIRECTED AGAINST THE ORDERS PASSED B Y THE COMMISSIONER OF INCOME TAX (APPEAL)-19, KOLKATA, WHICH IN TURN ARISES OUT OF PENALTY ORDER PASSED BY THE ASSESSING OFFICER U/S 271(1)(C ) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 22.09.2016. 2. THE LD. AR SUBMITS THAT THE NOTICE DATED 21/03 /2016 ISSUED BY THE AO U/S 274 R.W.S 271(1) ( C) OF THE ACT IS DEFECTIVE FOR NOT MENTIONING THE SPECIFIC CHARGE AND PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SSAS EMERALD MEADOWS. BINAGURI TEA CO. PVT. LTD. ITA NO.2160/KOL/2018 ASSESSMENT YEAR: 2013-14 P PP PA AA AG GG GE EE E | || | 2 22 2 3. THE LD.AR FURTHER SUBMITS THAT THE ISSUE RAISED IN THE APPEAL IS COVERED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF SSAS EMERALD MEADOWS . HE ALSO SUBMITS THAT THE AO IMPOSED PENALTY ON DEFE CTIVE NOTICE ISSUED U/S. 274 OF THE ACT ON 21/03/2016 AND THE IMPOSITION/CONFIRMATION OF PENALTY ON DEFECTIVE NOTICE IS NOT MAINTAINABLE IN THE EYE OF LAW. 4. ON THE OTHER HAND, THE LD. DR STATED THAT THE WRITTEN SUBMISSION FILED BY THE DEPARTMENT ON EARLIER OCCASIONS WITH REGARD TO THIS ISSUE MAY KINDLY BE TAKEN ON RECORD WHICH IS REPRODUCED HEREUNDER:- 1. THE HONBLE ITAT, 'D' BENCH, KOLKATA, IN THE CO URSE OF HEARING OF APPEAL OF M/S. DADHEECH FURNITURE PVT. LIMITED VS.ITO, WARD 7(3), KOLKATA FOR THE A.Y 2012-13 , AT THE REQUEST OF THE DR, ALLOWED THE DEP ARTMENT TO MAKE A WRITTEN SUBMISSION, ON THE ISSUE OF WHETHER NON MARKING UPO N CONCERNED DETAIL IN THE NOTICE U/S.274, OUTLINING THE TYPE OF DEFAULT WOULD CONSTITUTE GROUNDS FOR REJECTION OF SATISFACTION AND LEVY OF PENALTY U/S.2 71(1)(C) OF THE IT. ACT. 2. THE JUDGEMENT OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE DR.SYAMAL BARAN MONDAL VS. CIT (2011) 244 CTR631 STATES THAT 'SECTION 271 NOWHERE MANDATES THAT RECORDING OF SATISFACTION ABOUT CONCE ALMENT OF ASSESSEE'S INCOME MUST BE IN SPECIFIC TERMS AND WORDS, SATISFACTION O F AO MUST REFLECT FROM THE ORDER EITHER WITH EXPRESSED WORDS RECORDED BY THE A SSESSING OFFICER HIMSELF OR BY HIS OVERT ACT AND ACTION.' 3. THE LD. ITAT MUMBAI IN ITS ORDER THE CASE OF TRI SHUL ENTERPRISES VS. DCIT (ITA NOS.384 & 385/MUM/2014 FOR A.YRS.2006-07 & 200 7-08), DT.10-02-2017 DISMISSED THE CONTENTION OF THE ASSESSEE REGARDING FAILURE OF THE AO TO STRIKE OFF THE RELEVANT PART OF THE NOTICE U/S.274 FOR INITIAT ING PROCEEDINGS U/S.271(1)(C). THE ITAT RELIED UPON THE JUDGEMENT OF THE HON'BLE B OMBAY HIGH COURT IN THE CASE OF CIT VS. SMT.KAUSHALYA (1992) WHEREIN IT WAS HELD THAT 'MERE NOT STRIKING OFF SPECIFIC LIMB CANNOT BY ITSELF INVALID ATE NOTICE ISSUED U/ S.274 OF THE ACT. THE LANGUAGE OF THE SECTION DOES NOT SPEAK ABO UT THE ISSUANCE OF NOTICE. ALL THAT IS REQUIRED THAT THE ASSESSEE BE GIVEN AN OPPO RTUNITY OF SHOW CAUSE.. ' 4. THE HON'BLE BOMBAY HIGH COURT (NAGPUR BENCH) IN THE CASE OF M/S.MAHARAJ GARAGE & COMPANY VS. CIT IN ITS JUDGEMENT DT.22-08- 2017, HAS ALSO HELD THAT '15. THE REQUIREMENT OF SECTION 274 OF THE INCOME T AX ACT FOR GRANTING REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER CANNOT BE STRETCHED TO THE EXTENT OF FRAMING A SPECIFIC CHARGE OR ASKING THE A SSESSEE AN EXPLANATION IN RESPECT OF THE QUANTUM OF PENALTY PROPOSED TO BE IM POSED, AS HAS BEEN URGED ..... ' IT FURTHER OBSERVED THAT: '16. IT IS NOT IN DISPU TE THAT A REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER, AS REQUIRED BY SECTIO N 274 OF THE SAID ACT WAS GIVEN TO THE ASSESSEE BEFORE IMPOSING THE PENALTY B Y THE INCOME TAX OFFICER.' 5. HONBLE MUMBAI E BENCH IN THE CASE OF EARTHMOVING EQUIPMENT SERVICE CORPORATION VS DCIT 22(2), MUMBAI (2017) 84 TAXMANN .COM 51 LOOKED INTO THE ISSUE VERY CLOSELY AND OPINED THAT AFTER PERUSING T HE RATIO OF THE JUDGEMENT BINAGURI TEA CO. PVT. LTD. ITA NO.2160/KOL/2018 ASSESSMENT YEAR: 2013-14 P PP PA AA AG GG GE EE E | || | 3 33 3 RENDERED IN MANJUNATHA COTON AND GINNING FACTORY WE FIND THAT THE ASSESSEES APPEAL WAS ALLOWED BY THE HONBLE HIGH COURT AFTER C ONSIDERING THE MULTIPLE FACTORS AND NOT SOLELY ON THE BASIS OF DEFECT IN NO TICE U/S 274. THEREFORE WE ARE OF THE OPINION THAT THE PENALTY COULD NOT BE DELETE D MERELY ON THE BASIS OF DEFECT POINTED BY THE LD AR IN THE NOTICE AND THEREFORE TH E LEGAL GROUNDS RAISED ARE REJECTED. 6. THE MUMBAI BENCH OF ITAT IN A RECENT DECISION IN THE CASE OF MAHESH M GANDHI VS ACIT [TS-5465-ITAT-2017(MUMBAI)-O] ALSO D EALT WITH THIS ASPECT. THE TAXPAYER HAD NOT OFFERED DIRECTOR'S FEES AND IN COME FROM SHORT TERM CAPITAL GAINS TO TAX IN THE RETURN OF INCOME. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS WHEN THESE INCOMES WERE PICKED UP BY TH E TAX OFFICER, THE TAXPAYER ADMITTED EARNING OF THE INCOMES AND FILED A REVISED COMPUTATION OF INCOME. BASED ON THIS FINDING, THE TAX OFFICER MENTIONED IN THE ASSESSMENT ORDER THAT PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WILL BE INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. SUB SEQUENTLY THE TAX OFFICER ISSUED A NOTICE UNDER SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT WHEREIN THE REASON FOR PENALTY WAS NOT MENTIONED. THE TAXPA YER FILED AN APPEAL BEFORE THE CIT(A) WHICH RULED IN FAVOUR OF THE REVENUE. TH E CIT(A) PLACED RELIANCE ON THE DECISION OF THE KHC IN THE CASE OF CIT VS MANJU NATHA COTTON AND GINNING FACTORY (SUPRA), THE CIT(A) RULED IN FAVOUR OF THE REVENUE. AGGRIEVED THE TAXPAYER PREFERRED AN APPEAL BEFORE THE ITAT. THE I TAT AFTER OBSERVING THE FACTS OF THE CASE HELD THAT THE TAX OFFICER HAD RECORDED SATISFACTION IN THE ASSESSMENT ORDER IN RELATION TO INVOKING PENALTY PROVISIONS. T HE TAX OFFICER HAD APPLIED HIS MIND WHILE DETAILING THE REASONS FOR INITIATION OF PENALTY PROCEEDINGS IN THE ASSESSMENT ORDER. ACCORDINGLY, NOT MENTIONING THE R EASONS IN THE PENALTY NOTICE CANNOT INVALIDATE THE PENALTY PROCEEDINGS. 7. HON'BLE MUMBAI ITAT IN THE CASE OF DHANRAJ MILLS (P) LTD VS ACIT(OSD) CENTRAL RANGE-S, MUMBAI ON 21 MARCH 2017 HAS STATED AS THERE IS NO DECLARATION OF LAW WHICH MAY BE GOVERNED BY ARTICLE 141 OF THE CONSTITUTION OF INDIA IN THE CASE OF CITVERSUS SSA'S EMERALD MEADOW S DISMISSED BY HON'BLE APEX COURT, VIDE SLP (CC NO. 11485/2016) ON 05/08/2 016. THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS KAUSHAL YA (SUPRA) IS STILL HAVING A BINDING FORCE ON US. THUS, WITH UTMOST REGARDS TO T HE JUDGMENT OF KARNATAKA HIGH COURT IN CIT VS MANJUNATHA COTTON & GINNING FA CTORY (SUPRA) WE ARE BOUND TO FOLLOW THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN CIT VS KAUSHALYA (SUPRA). OUR VIEW ALSO FIND SUPPORT FROM A DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF DHAWAL K. JAIN VS INCOME TA X OFFICER (ITA NO.996/MUM/2014) ORDER DATED 30/09/2016. WITH THESE OBSERVATIONS, THE ARGUMENT OF ID. COUNSEL OF THE ASSESSEE ON THE LEGA L/TECHNICAL GROUND IS REJECTED. THUS, ALL THESE FOUR APPEALS ARE, THEREFORE, DISMIS SED AND THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) IS AFFIRMED. 8. HONBLE MADRAS HIGH COURT IN THE CASE OF SUNDARA M FINANCE LTD. VS. ACIT IN [2018] 93 TAXMANN.COM 250 (MADRAS) WHEREIN IT WAS HELD AS UNDER: 16. WE HAVE PERUSED THE NOTICES AND WE FIND THAT THE R ELEVANT COLUMNS HAVE BEEN MARKED, MORE PARTICULARLY, WHEN THE CASE AGAINST THE ASSESSEE IS THAT THEY HAVE CONCEALED PARTICULARS OF INCOME A ND FURNISHED INACCURATE PARTICULARS OF INCOME. THEREFORE, THE CO NTENTION RAISED BY THE ASSESSEE IS LIABLE TO BE REJECTED ON FACTS. THAT AP ART, THIS ISSUE CAN NEVER BINAGURI TEA CO. PVT. LTD. ITA NO.2160/KOL/2018 ASSESSMENT YEAR: 2013-14 P PP PA AA AG GG GE EE E | || | 4 44 4 BE A QUESTION OF LAW IN THE ASSESSEE'S CASE, AS IT IS PURELY A QUESTION OF FACT. APART FROM THAT, THE ASSESSEE HAD AT NO EARLI ER POINT OF TIME RAISED THE PLEA THAT ON ACCOUNT OF A DEFECT IN THE NOTICE, THEY WERE PUT TO PREJUDICE. ALL VIOLATIONS WILL NOT RESULT IN NULLIF YING THE ORDERS PASSED BY STATUTORY AUTHORITIES. IF THE CASE OF THE ASSESSEE IS THAT THEY HAVE BEEN PUT TO PREJUDICE AND PRINCIPLES OF NATURAL JUSTICE WERE VIOLATED ON ACCOUNT OF NOT BEING ABLE TO SUBMIT AN EFFECTIVE REPLY, IT WOU LD BE A DIFFERENT MATTER. THIS WAS NEVER THE PLEA OF THE ASSESSEE EITHER BEFO RE THE ASSESSING OFFICER OR BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THIS COURT WHEN THE TAX CASE APPEALS WERE FI LED AND IT WAS ONLY AFTER 10 YEARS, WHEN THE APPEALS WERE LISTED FOR FI NAL HEARING, THIS ISSUE IS SOUGHT TO BE RAISED. THUS ON FACTS, WE COULD SAFELY CONCLUDE THAT EVEN ASSUMING THAT THERE WAS DEFECT IN THE NOTICE, IT HA D CAUSED NO PREJUDICE TO THE ASSESSEE AND THE ASSESSEE CLEARLY UNDERSTOOD WHAT WAS THE PURPORT AND IMPORT OF NOTICE ISSUED UNDER SECTION 274 R/W, SECTION 271 OF THE ACT. THEREFORE, PRINCIPLES OF NATURAL JUSTICE CANNOT BE READ IN ABSTRACT AND THE ASSESSEE, BEING A LIMITED COMPANY, HAVING WIDE NETW ORK IN VARIOUS FINANCIAL SERVICES, SHOULD DEFINITELY BE PRECLUDED FROM RAISING SUCH A PLEA AT THIS BELATED STAGE. 9. THE ASSESSEE FILED SPECIAL LEAVE PETITION BEFORE THE HONBLE SUPREME COURT AGAINST THE ORDER OF HONBLE MADRAS HIGH COURT IN T HE CASE OF SUNDARAM FINANCE LTD. (SUPRA). THE HONBLE SUPREME COURT DIS MISSED THE SLP OBSERVING THE FOLLOWING: SECTION 271(1)(C) , READ WITH SECTION 32 , OF THE INCOME-TAX ACT, 1961 - PENALTY - FOR CONCEALMENT OF INCOME (DISALLOWANCE O F CLAIM, EFFECT OF) - ASSESSMENT YEAR 1994-95 - ASSESSEE-COMPANY, ENGAG ED IN BUSINESS OF LEASING OF ASSETS, PURCHASED AIR POLLUTION CONTROL EQUIPMENT FROM COMPANY, PE AND LEASED BACK SAME TO COMPANY, PIL - DURING SEARCH CONDUCTED UPON PREMISES OF PE, ASSESSING OFFICER FO UND THAT NO SUCH EQUIPMENT WAS SUPPLIED BY PE TO ASSESSEE AND PURCHA SE AND LEASE BACK TRANSACTION ENTERED INTO BETWEEN ASSESSEE AND PIL W AS NOT A GENUINE TRANSACTION; RATHER IT WAS SIMPLY A CASE OF PROVIDI NG FINANCE TO PIL BY ASSESSEE AND, THEREFORE, ASSESSEE WAS NOT ENTITLED TO DEPRECIATION ON SUCH EQUIPMENT - HIGH COURT BY IMPUGNED ORDER HELD THAT BY CLAIMING DEPRECIATION ON ASSET/EQUIPMENT WHICH DID NOT EXIST OR WHICH WAS NEVER SUPPLIED, ASSESSEE HAD NOT ONLY CONCEALED PARTICULA RS OF ITS INCOME, BUT HAD ALSO FURNISHED INACCURATE PARTICULARS OF INCOME , THEREFORE, PENALTY UNDER SECTION 271(1)(C) WAS TO BE LEVIED UPON ASSES SEE FOR FURNISHING INACCURATE PARTICULARS AND CONCEALMENT OF INCOME - WHETHER SPECIAL LEAVE PETITION FILED AGAINST IMPUGNED ORDER WAS TO BE DISMISSED - HELD, YES [PARAS 12 AND 13] [IN FAVOUR OF REVENUE] 10. THEREFORE, IT IS SUBMITTED THAT SERVICE OF NOTI CE U/S.274 FOR INITIATING PENALTY PROCEEDINGS U/S.271(1)(C) OF THE IT. ACT, WOULD CON STITUTE VALID INITIATION OF PENALTY PROCEEDINGS AND THE CASE MAY BE HEARD ON ME RITS. BINAGURI TEA CO. PVT. LTD. ITA NO.2160/KOL/2018 ASSESSMENT YEAR: 2013-14 P PP PA AA AG GG GE EE E | || | 5 55 5 5. IN VIEW OF ABOVE, THE LD. DR PRAYED THE BENCH TO DISMISS THE GROUNDS RAISED IN APPEAL AND TO CONFIRM THE PENALTY IMPOSE D BY THE AO AND CONFIRMED BY THE CIT-A RESPECTIVELY. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDER ED THE WRITTEN SUBMISSIONS AND THE CASE LAWS RELIED UPON BY THE LD . DR. WE FIND THE SAME SET OF WRITTEN SUBMISSIONS WERE FILED BEFORE THE COORDINAT E BENCH OF THIS TRIBUNAL IN THE CASE OF JEETMAL CHORARIA IN ITA 956/KOL/16 FOR AY 2010-11, WHEREIN THE COORDINATE BENCH ELABORATELY DISCUSSED THE FACTS IN THE DECISIONS AS RELIED UPON BY THE LD. DR AND THE PRINCIPLE LAID DOWN BY THE R ESPECTIVE HONBLE HIGH COURTS AT BOMBAY AND PATNA AND PREFERRED TO FOLLOW THE RAT IO LAID DOWN BY THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF MANJUNATHA C OTTON AND GINNING SUPRA BY TAKING SUPPORT OF THE ESTABLISHED PRINCIPLE FOR A P ROPOSITION WHEN THERE ARE TWO VIEWS ON THE ISSUE, ONE IN THE FAVOURING OF ASSESSE E SHOULD BE ADOPTED, WHICH ENUNCIATED BY THE HONBLE SUPREME COURT IN THE CAS E OF VEGETABLE PRODUCTS LTD REPORTED IN 88 ITR 192 (SC). WE ARE IN AGREEMENT WI TH THE REASONING OF THE CO-ORDINATE BENCH IN ITS ORDER DT: 01-12-2017 IN THE CASE OF JEETMAL CHORARIA AND THE SAME IS REPRODUCE D HEREIN BELOW FOR READY REFERENCE: 7. THE LEARNED DR SUBMITTED THAT THE HONBLE CA LCUTTA HIGH COURT IN THE CASE OF DR.SYAMAL BARAN MONDAL VS. CIT (2011) 244 C TR 631 (CAL) HAS TAKEN A VIEW THAT SEC.271 DOES NOT MANDATE THAT THE RECORDING OF SATISFACTION ABOUT CONCEALMENT OF INCOME MUST BE IN SPECIFIC TER MS AND WORDS AND THAT SATISFACTION OF AO MUST REFLECT FROM THE ORDER EITH ER WITH EXPRESSED WORDS RECORDED BY THE AO OR BY HIS OVERT ACT AND ACTION. IN OUR VIEW THIS DECISION IS ON THE QUESTION OF RECORDING SATISFACTION AND NO T IN THE CONTEXT OF SPECIFIC CHARGE IN THE MANDATORY SHOW CAUSE NOTICE U/S.274 O F THE ACT. THEREFORE REFERENCE TO THIS DECISION, IN OUR VIEW IS NOT OF A NY HELP TO THE PLEA OF THE REVENUE BEFORE US. 8. THE LEARNED DR RELIED ON THREE DECISIONS OF MU MBAI ITAT VIZ., (I) DHANRAJ MILLS PVT. LTD. VS. ACIT ITA NO.3830 & 3833 /MUM/2009 DATED 21.3.2017; (II) EARTHMOVING EQUIPMENT SERVICE CORPO RATION VS. DCIT 22(2), MUMBAI, (2017) 84 TAXMANN.COM 51 (III) MAHES H M.GANDHI VS. ACIT VS. ACIT ITA NO.2976/MUM/2016 DATED 27.2.2017. REL IANCE WAS PLACED ON TWO DECISIONS OF THE HONBLE BOMBAY HIGH COURT VIZ. , (I) CIT VS. KAUSHALYA 216 ITR 660(BOM) AND (II) M/S.MAHARAJ GARAGE & CO. VS. CIT DATED 22.8.2017. THIS DECISION WAS REFERRED TO IN THE WR ITTEN NOTE GIVEN BY THE LEARNED DR. THIS IS AN UNREPORTED DECISION AND A C OPY OF THE SAME WAS NOT BINAGURI TEA CO. PVT. LTD. ITA NO.2160/KOL/2018 ASSESSMENT YEAR: 2013-14 P PP PA AA AG GG GE EE E | || | 6 66 6 FURNISHED. HOWEVER A GIST OF THE RATIO LAID DOWN I N THE DECISION HAS BEEN GIVEN IN THE WRITTEN NOTE FILED BEFORE US. 9. IN THE CASE OF CIT VS. KAUSHALYA (SUPRA), THE H ONBLE BOMBAY HIGH COURT HELD THAT SECTION 274 OR ANY OTHER PROVISION IN THE ACT OR THE RULES, DOES NOT EITHER MANDATE THE GIVING OF NOTICE OR ITS ISSUANCE IN A PARTICULAR FORM. PENALTY PROCEEDINGS ARE QUASI-CRIMINAL IN NAT URE. SECTION 274 CONTAINS THE PRINCIPLE OF NATURAL JUSTICE OF THE A SSESSEE BEING HEARD BEFORE LEVYING PENALTY. RULES OF NATURAL JUSTICE CA NNOT BE IMPRISONED IN ANY STRAIGHT-JACKET FORMULA. FOR SUSTAINING A COMPLAINT OF FAILURE OF THE PRINCIPLES OF NATURAL JUSTICE ON THE GROUND OF ABSE NCE OF OPPORTUNITY, IT HAS TO BE ESTABLISHED THAT PREJUDICE IS CAUSED TO THE C ONCERNED PERSON BY THE PROCEDURE FOLLOWED. THE ISSUANCE OF NOTICE IS AN AD MINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO LEVY P ENALTY IN ORDER TO ENABLE HIM TO EXPLAIN AS TO WHY IT SHOULD NOT BE DONE. MER E MISTAKE IN THE LANGUAGE USED OR MERE NON-STRIKING OF THE INACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE ITAT MUMBAI BENCH IN THE CASE OF DHANRAJ MILLS PVT.LTD. (SUPRA) FOLLOWED THE DECISION RENDERED BY THE JURISDICTIONAL HONBLE BOMBAY HIGH COURT IN THE CASE OF KAUSHALYA (SUPRA) AND CHOSE NOT TO FOLLOW DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA). RELIA NCE WAS ALSO PLACED BY THE ITAT MUMBAI IN THIS DECISION ON THE DECISION OF HONBLE PATNA HIGH COURT IN THE CASE OF CIT V. MITHILA MOTOR 'S (P.) LTD. [1984] 149 ITR 751 (PATNA) WHEREIN IT WAS HELD THAT UNDER SECTION 274 OF THE INCOME-TAX ACT, 1961, ALL THAT IS REQUIRED IS THAT THE ASSESSEE SHO ULD BE GIVEN AN OPPORTUNITY TO SHOW CAUSE. NO STATUTORY NOTICE HAS BEEN PRESCRI BED IN THIS BEHALF. HENCE, IT IS SUFFICIENT IF THE ASSESSEE WAS AWARE OF THE C HARGES HE HAD TO MEET AND WAS GIVEN AN OPPORTUNITY OF BEING HEARD. A MISTAKE IN THE NOTICE WOULD NOT INVALIDATE PENALTY PROCEEDINGS. 10. IN THE CASE OF EARTHMOVING EQUIPMENT SERVICE C ORPORATION (SUPRA), THE ITAT MUMBAI DID NOT FOLLOW THE DECISION RENDERED IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA) FOR THE REASON THAT PENALTY IN THAT CASE WAS DELETED FOR SO MANY REASONS AND NO T SOLELY ON THE BASIS OF DEFECT IN SHOW CAUSE NOTICE U/S.274 OF THE ACT. THI S IS NOT FACTUALLY CORRECT. ONE OF THE PARTIES BEFORE THE GROUP OF ASSESSEES BE FORE THE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (S UPRA) WAS AN ASSESSEE BY NAME M/S.VEERABHADRAPPA SANGAPPA & CO., IN ITA NO.5020 OF 2009 WHICH WAS AN APPEAL BY THE REVENUE. THE TRIBUNAL H ELD THAT ON PERUSAL OF THE NOTICE ISSUED UNDER SECTION 271(1)(C) OF THE AC T, IT IS CLEAR THAT IT IS A STANDARD PROFORMA USED BY THE ASSESSING AUTHORITY. BEFORE ISSUING THE NOTICE THE INAPPROPRIATE WORDS AND PARAGRAPHS WERE NEITHER STRUCK OFF NOR DELETED. THE ASSESSING AUTHORITY WAS NOT SURE AS TO WHETHER SHE HAD PROCEEDED ON THE BASIS THAT THE ASSESSEE HAD EITHER CONCEALED ITS INCOME OR HAS FURNISHED INACCURATE DETAILS. THE NOTICE IS NOT IN COMPLIANCE WITH THE REQUIREMENT OF THE PARTICULAR SECTION AND THEREFORE IT IS A VAGUE NOTICE, WHICH IS ATTRIBUTABLE TO A PATENT NON APPLICATION O F MIND ON THE PART OF THE ASSESSING AUTHORITY. FURTHER, IT HELD THAT THE ASSE SSING OFFICER HAD MADE ADDITIONS UNDER SECTION 69 OF THE ACT BEING UNDISCL OSED INVESTMENT. IN THE APPEAL, THE SAID FINDING WAS SET-ASIDE. BUT ADDITIO N WAS SUSTAINED ON A NEW GROUND, THAT IS UNDER VALUATION OF CLOSING STOCK. S INCE THE ASSESSING AUTHORITY HAD INITIATED PENALTY PROCEEDINGS BASED O N THE ADDITIONS MADE BINAGURI TEA CO. PVT. LTD. ITA NO.2160/KOL/2018 ASSESSMENT YEAR: 2013-14 P PP PA AA AG GG GE EE E | || | 7 77 7 UNDER SECTION 69 OF THE ACT, WHICH WAS STRUCK DOWN BY THE APPELLATE AUTHORITY, THE INITIATED PENAL PROCEEDINGS, NOLONGE R EXISTS. IF THE APPELLATE AUTHORITY HAD INITIATED PENAL PROCEEDINGS ON THE BA SIS OF THE ADDITION SUSTAINED UNDER A NEW GROUND IT HAS A LEGAL SANCTUM . THIS WAS NOT SO IN THIS CASE AND THEREFORE, ON BOTH THE GROUNDS THE IMPUGNE D ORDER PASSED BY THE APPELLATE AUTHORITY AS WELL AS THE ASSESSING AUTHOR ITY WAS SET-ASIDE BY ITS ORDER DATED 9TH APRIL, 2009. AGGRIEVED BY THE SAID ORDER, THE REVENUE FILED APPEAL BEFORE HIGH COURT. THE HONBLE HIGH COURT F RAMED THE FOLLOWING QUESTION OF LAW IN THE SAID APPEAL VIZ., 1. WHETHER THE NOTICE ISSUED UNDER SECTION 271(1)(C) IN THE PRINTED FORM WITHOUT SPECI FICALLY MENTIONING WHETHER THE PROCEEDINGS ARE INITIATED ON THE GROUND OF CONCEALMENT OF INCOME OR ON ACCOUNT OF FURNISHING OF INACCURATE PA RTICULARS IS VALID AND LEGAL? 2. WHETHER THE PROCEEDINGS INITIATED BY THE ASSESSING AUTHORITY WAS LEGAL AND VALID? THE HONBLE KARNATAKA HIGH COURT HELD IN THE NEGATIVE AND AGAINST THE REVENUE ON BOTH THE QUESTIONS. THE REFORE THE DECISION RENDERED BY THE ITAT MUMBAI IN THE CASE OF EARTHMOV ING EQUIPMENT SERVICE CORPORATION (SUPRA) IS OF NO ASSISTANCE TO THE PLEA OF THE REVENUE BEFORE US. 11. IN THE CASE OF M/S.MAHARAJ GARAGE & CO. VS. CI T DATED 22.8.2017 REFERRED TO IN THE WRITTEN NOTE GIVEN BY THE LEARNE D DR, WHICH IS AN UNREPORTED DECISION AND A COPY OF THE SAME WAS NOT FURNISHED, THE SAME PROPOSITION AS WAS LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT.KAUSHALYA (SUPRA) APPEARS TO HAVE BEEN REITE RATED, AS IS EVIDENT FROM THE EXTRACTS FURNISHED IN THE WRITTEN NOTE FURNISHE D BY THE LEARNED DR BEFORE US. 12. IN THE CASE OF TRISHUL ENTERPRISES ITA NO.384 & 385/MUM/2014, THE MUMBAI BENCH OF ITAT FOLLOWED THE DECISION OF THE H ONBLE BOMBAY HIGH COURT IN THE CASE OF SMT.KAUSHALYA (SUPRA). 13. IN THE CASE OF MAHESH M.GANDHI (SUPRA) THE MUM BAI ITAT THE ITAT HELD THAT THE DECISION OF THE HONBLE KARNATAKA HIG H COURT IN THE CASE MANJUNATHA COTTON & GINNING (SUPRA) WILL NOT BE APP LICABLE TO THE FACTS OF THAT CASE BECAUSE THE AO IN THE ASSESSMENT ORDER WH ILE INITIATING PENALTY PROCEEDINGS HAS HELD THAT THE ASSESSEE HAD CONCEALE D PARTICULARS OF INCOME AND MERELY BECAUSE IN THE SHOW CAUSE NOTICE U/S.274 OF THE ACT, THERE IS NO MENTION WHETHER THE PROCEEDINGS ARE FOR FURNISHING INACCURATE PARTICULARS OR CONCEALING PARTICULARS OF INCOME, THAT WILL NOT VITIATE THE PENALTY PROCEEDINGS. IN THE PRESENT CASE THERE IS NO WHISPH ER IN THE ORDER OF ASSESSMENT ON THIS ASPECT. WE HAVE POINTED OUT THI S ASPECT IN THE EARLIER PART OF THIS ORDER. HENCE, THIS DECISION WILL NOT BE OF ANY ASSISTANCE TO THE PLEA OF THE REVENUE BEFORE US. EVEN OTHERWISE THIS DECISION DOES NOT FOLLOW THE RATIO LAID DOWN BY THE HONBLE KARNATAKA HIGH C OURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) IN AS MUCH AS T HE RATIO LAID DOWN IN THE SAID CASE WAS ONLY WITH REFERENCE TO SHOW CAUSE NOTICE U/S.274 OF THE ACT. THE HONBLE COURT DID NOT LAY DOWN A PROPOSIT ION THAT THE DEFECT IN THE SHOW CAUSE NOTICE WILL STAND CURED IF THE INTENTION OF THE CHARGE U/S.271(1) (C ) IS DISCERNIBLE FROM A READING OF THE ASSESSMEN T ORDER IN WHICH THE PENALTY WAS INITIATED. BINAGURI TEA CO. PVT. LTD. ITA NO.2160/KOL/2018 ASSESSMENT YEAR: 2013-14 P PP PA AA AG GG GE EE E | || | 8 88 8 14. FROM THE AFORESAID DISCUSSION IT CAN BE SEEN T HAT THE LINE OF REASONING OF THE HONBLE BOMBAY HIGH COURT AND THE HONBLE PA TNA HIGH COURT IS THAT ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO LEVY PENALTY IN ORDER TO ENAB LE HIM TO EXPLAIN AS TO WHY IT SHOULD NOT BE DONE. MERE MISTAKE IN THE LANG UAGE USED OR MERE NON- STRIKING OF THE INACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE TRIBUNAL BENCHES AT MUMBAI AND PATNA BEING SUBORDIN ATE TO THE HONBLE BOMBAY HIGH COURT AND PATNA HIGH COURT ARE BOUND TO FOLLOW THE AFORESAID VIEW. THE TRIBUNAL BENCHS AT BANGALORE H AVE TO FOLLOW THE DECISION OF THE HONBLE KARNATAKA HIGH COURT. AS FAR AS BENCHES OF TRIBUNAL IN OTHER JURISDICTIONS ARE CONCERNED, THER E ARE TWO VIEWS ON THE ISSUE, ONE IN FAVOUR OF THE ASSESSEE RENDERED BY TH E HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNI NG (SUPRA) AND OTHER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT .KAUSHALYA. IT IS SETTLED LEGAL POSITION THAT WHERE TWO VIEWS ARE AVA ILABLE ON AN ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLOWED. WE THEREFORE PREFER TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA). 15. WE HAVE ALREADY OBSERVED THAT THE SHOW CAUSE N OTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY TH E CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICU LARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE SH OW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT STRIKE OUT THE INAPPROPRIATE WO RDS. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSITION O F PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSE SSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN THE EARLIER PART OF THIS O RDER HAS TO BE ACCEPTED. WE THEREFORE HOLD THAT IMPOSITION OF PENALTY IN THE PR ESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. 7. WE FIND THE NOTICE DATED 21/03/2016 ISSUED U/ S. 274 R.W.S 271 OF THE ACT, PLACED ON RECORD, DOES NOT SPECIFY THE CHARGE OF OF FENCE COMMITTED BY THE ASSESSEE VIZ. WHETHER HAD CONCEALED THE PARTICULAR S OF INCOME OR HAD FURNISHED INACCURATE PARTICULARS OF INCOME. HENCE THE SAID N OTICE IS TO BE HELD AS DEFECTIVE. 8. FURTHER, WE FIND THAT REVENUE HAD PREFERRED A SL P BEFORE THE HONBLE SUPREME COURT AGAINST THIS JUDGMENT WHICH WAS DISMI SSED IN CC NO. 11485/2016 DATED 5.8.2016 BY OBSERVING AS UNDER:- UPON HEARING THE COUNSEL, THE COURT MADE THE FOLLO WING ORDER DELAY CONDONED. WE DO NOT FIND ANY MERIT IN THIS PETITION. THE SPE CIAL LEAVE PETITION IS , ACCORDINGLY DISMISSED. PENDING APPLICATION, IF ANY, STANDS DISPOSED OF. BINAGURI TEA CO. PVT. LTD. ITA NO.2160/KOL/2018 ASSESSMENT YEAR: 2013-14 P PP PA AA AG GG GE EE E | || | 9 99 9 WE ALSO FIND THAT THE HONBLE JURISDICTIONAL HIGH C OURT IN ITS RECENT DECISION IN THE CASE OF PCIT VS. DR. MURARI MOHAN KOLEY IN ITAT NO. 306 OF 2017, G.A. NO. 2968 OF 2017 DATED 18.07.2018 HAD ENDORSED THE AFORESAID VIEW. 9. WE NOTE THAT HONBLE SUPREME COURT HAS DISMISSED THE SLP OF ASSESSEE IN THE CASE OF SUNDARAM FINANCE LTD. (SUPRA), ON THE SAME SINCE THE HONBLE SUPREME COURT ALSO DISMISSED THE SLP OF REVENUE IN THE CASE OF CC NO. 11485/2016 DATED 05.08.2016, MENTIONED IN PARA 8 OF THIS ORDER . THUS, WE NOTE THAT ON THE SAME ISSUE THERE IS TWO CONFLICTING JUDGMENTS OF HO NBLE SUPREME COURT. IN THIS SCENARIO, WE TAKE THE SUPPORT OF THE ESTABLISHED PR INCIPLE FOR A PROPOSITION THAT WHEN THERE ARE TWO VIEWS ON THE ISSUE, ON IN THE F AVOURING OF THE ASSESSEE SHOULD BE ADOPTED FOR THAT WE RELY ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS LTD. 88 ITR 192 (SC). 10. RESPECTFULLY FOLLOWING THE ABOVE, WE SET ASIDE THE ORDER OF CIT-A AND CANCEL THE PENALTY OF RS. 3,60,499/- LEVIED BY THE AO U/S 271(1)(C) OF THE ACT FOR A.Y 2005-06. ACCORDINGLY, GROUNDS RAISED BY THE ASS ESSEE IN THE APPEAL FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ARE ALLOWED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 26.04 .2019 SD/- ( S.S.VISWANETHRA RAVI ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ! / DATE: 26/04/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. BINAGURI TEA CO. PVT. LTD. 2. DCIT, CIRCLE-4(1), KOLKATA BINAGURI TEA CO. PVT. LTD. ITA NO.2160/KOL/2018 ASSESSMENT YEAR: 2013-14 P PP PA AA AG GG GE EE E | || | 1 11 10 00 0 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES