The Assistant Commissioner of Income Tax, Circle-2(1), Rajahmundry V. The Aryapuram Cooperative Urban Bank Limited, Rajahmundry

ITA 239/VIZ/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0299 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 01-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Principle of natural justice; Question of law; Capital Gains
• Section: 271(1)(c); 143(3); 133A; 201; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 239 / VIZ /201 9 (ASST. YEAR : 20 11 - 12 ) ACIT, CIRCLE - 2(1), RAJAMAHENDRAVARAM. VS. M/S. THE ARYAPURAM CO - OPERATIVE URBAN BANK LTD., D.NO. 20 - 23 - 8, ARYAPURAM, RAJAHMUNDRY. PAN NO. AAATT 8099 C (APPELLANT) (RESPONDENT) C.O.NO. 75/VIZ/2019 (ARISING OUT OF ITA NO. 239 / VIZ /201 9 ) (ASST. YEAR : 20 11 - 12 ) M/S. THE ARYAPURAM CO - OPERATIVE URBAN BANK LTD., D.NO. 20 - 23 - 8, ARYAPURAM, RAJAHMUNDRY. VS. ACIT, CIRCLE - 2(1), RAJAMAHENDRAVARAM. PAN NO. AAATT 8099 C (APP LICANT ) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SMT. SUMAN MALIK SR. DR DATE OF HEARING : 25 / 0 9 /201 9 . DATE OF PRONOUNCEMENT : 27 / 0 9 /201 9 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF 2 ITA NO. 239/VIZ/2019 C.O.NO.75/VIZ/2019 ( M/S. THE ARYAPURAM CO - OP URBAN BANK LTD. ) INCOME TAX (APPEALS) , RAJAMAHENDRAVARAM , DATED 2 1 /0 1 /201 9 FOR THE ASSESSMENT YEAR 20 11 - 12 . 2. THERE IS A DELAY OF 09 DAYS IN FILING THIS APPEAL . THE REVENUE HAS FILED AN AFFIDAVIT EXPLAINING THE REASONS FOR DELAY. WE HAVE GONE THROUGH THE AFFIDAVIT AND FIND THAT THERE IS A SUFFICIENT CAUSE IN NON - FILING THE APPEAL IN TIME. THEREFORE, IT IS A FIT CASE TO CONDONE THE DELAY. ACCORDINGLY, DELAY IS CONDONED. 3 . FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY ENGAGED IN THE BUSINESS OF BANKING , FILED ITS RETURN OF INCOME BY DECLARING TOTAL INCOME OF RS. 81,02,582/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE 'ACT') BY MAKING CERTAIN ADDITIONS . SUBSEQUENTLY, PENALTY NOTICE U / SEC . 271(1)(C) R.W.S. 274 OF THE ACT, DATED 04 /03/2014 WAS ISSUED AND THEREAFTER PENALTY ORDER U/SEC. 271(1)(C) WAS PASSED ON 1 6 /12 /2015 . 4 . ON APPEAL, LD. CIT(A) BY FOLLOWING THE ORDER OF THE ITAT, VISAKHAPATNAM BENCH IN THE CASE OF KONCHADA SREERAM VS. ITO IN ITA NO. 388/VIZ/2015, BY ORDER DATED 06/10/2017 ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE PENALTY. 5 . AGGRIEVED , THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 3 ITA NO. 239/VIZ/2019 C.O.NO.75/VIZ/2019 ( M/S. THE ARYAPURAM CO - OP URBAN BANK LTD. ) 6 . L EARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE NOTICE DATED 04/03/2014 ISSUED BY THE ASSESSING OFFICER IS NOT CLEAR WHETHER NOTICE ISSUED UNDER SECTION 271(1)(C) IS FOR CONCEALMENT OF INCOME OR FURNISHED INACCURATE PARTICULARS. THEREFORE, THE NOTICE ISSUED BY THE ASSESSING OFFICER IS NOT A VALID NOTICE IN THE LIGHT OF THE LA TEST JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS [(2016) 73 TAXMAN.COM 248 (SC)] AND ALSO THE HON'BLE HIGH COURT OF TELANGANA & A.P. IN I.T.T.A. NO. 684/2016 IN PR.CIT VS. SMT. BAISETTY REVATHI , DATED 13 /07/2017. 7 . ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT AT THE TIME OF ISSUANCE OF NOTICE, THE ASSESSING OFFICER IS NOT SURE ABOUT THE PENALTY EITHER FOR CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS. THEREFORE, IT IS A PREMA TURE NOTICE AND SUBMITTED THAT THE NOTICE ISSUED BY THE ASSESSING OFFICER IS A VALID NOTICE. 8 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 9. THE ONLY ISSUE FOR ADJUDICATION BEFORE US IS WH ETHER THE NOTICE ISSUED BY THE ASSESSING OFFICER DATED 04/03/2014 IS VALID OR 4 ITA NO. 239/VIZ/2019 C.O.NO.75/VIZ/2019 ( M/S. THE ARYAPURAM CO - OP URBAN BANK LTD. ) NOT. FOR THE SAKE OF CONVENIENCE, THE NOTICE IS EXTRACTED AS UNDER: - WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2011 - 12, IT APPEARS TO ME THAT YOU: - (I) X X X X (II) X X X X (III) HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 10 . FROM THE ABOVE, IT IS NOT CLEAR WHETHER ASSESSING OFFICER HAS INITIATED PENALTY PROCEEDINGS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHED INACCURATE PARTICULARS. THEREFORE, THE NOTICE ISSUED BY THE ASSESSING OFFICER IS A VAGUE NOTICE AND IS LIABLE TO BE QUASHED IN THE LIGHT OF THE DECISION OF THE HON'BLE HIGH COURT OF TELANGANA & A.P. IN THE CASE OF SMT. BAISETTY REV ATHI (SUPRA) AND ALSO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA). THE COORDINATE BENCH OF THE VISAKHAPATNAM TRIBUNAL IN THE CASE OF KONCHADA SREERAM VS. ITO IN ITA NO. 388/VIZ/2015, BY ORDER DATED 06/10/2017 HAS CONSIDERED THE VALIDITY OF NOTICE BY FOLLOWING THE ABOVE REFERRED TO JUDGMENTS AND HELD THAT NOTICE ISSUED BY THE ASSESSING OFFICER IS NOT A VALID NOTICE AND ACCORDINGLY QUASHED. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE ORDER IS EXTRACTED AS UNDER: - 5 ITA NO. 239/VIZ/2019 C.O.NO.75/VIZ/2019 ( M/S. THE ARYAPURAM CO - OP URBAN BANK LTD. ) 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THIS CASE, THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME. THE DEPARTMENT HAS CONDUCTED THE SURVEY U/S 133A AND COMPLETED THE ASSESSMENT U/S 143(3) ON TOTAL INCO ME OF RS.15,43,041/ - AND INITIATED PENALTY PROCEEDINGS U/S 271(1)(C). THE FACT IS THAT LONG TERM CAPITAL GAINS FOR SALE OF THE PROPERTY HAVE COME TO THE NOTICE OF THE ASSESSING OFFICER BECAUSE OF THE EFFORTS MADE BY THE DEPARTMENT. THEREFORE, THE AO HAS I NITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) AND ISSUED SHOW CAUSE NOTICE IN THE PRINTED PROFORMA OF PENALTY. THE AO HAS ISSUED THE PENALTY NOTICE WHICH READS AS UNDER : WHEREAS IN THE COURSE OF THE PROCEEDING BEFORE ME FOR THE ASST. YEAR 2007 - 08 IT APP EARS TO ME THAT YOU HAVE CONCEALED THE PARTICULARS OF YOUR SOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 6.1. FROM THE NOTICE ISSUED BY THE AO, IT IS OBSERVED THAT THE ASSESSING OFFICER HAD ISSUED THE NOTICE FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS. AS PER THE NOTICE, THE ASSESSING OFFICER WAS NOT SURE OF WHICH LIMB OF THE OFFENCE HE SOUGHT THE EXPLANATION FROM THE ASSESSEE, WHETHER IT WAS FOR THE CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS. AS PER THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT CITED, FOR STARTING THE PENALTY PROCEEDINGS, THE CONDITION PRECEDENT IS THAT THE ASSESSING OFFICER MUST BE SATISFIED THAT A PERSON HAS EITHER CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHE D INACCURATE PARTICULARS OF SUCH INCOME. THE PERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED IN SECTION 271 SHOULD BE MADE AWARE OF THE GROUNDS ON WHICH IMPOSITION OF PENALTY IS PROPOSED AS HE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HAVE THE FULL OPPORTUNITY TO MEET THE CASE OF THE REVENUE SO AS TO SHOW THAT THE CONDITIONS STIPULATED IN SECTION 271(1)(C) DO NOT EXIST AND THAT HE IS NOT LIABLE TO PAY THE PENALTY. THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE LAW CITED HELD THAT THE PRACTICE OF THE REVENUE IN SENDING THE PRINTED FORM WHERE ALL THE GROUNDS MENTIONED IN 271(1)(C) ARE MENTIONED WOULD NOT SATISFY THE REQUIREMENT OF LAW WHEN THE CONSEQUENCE OF THE ASSESSEE NOT REBUTTING THE INITIAL PRESUMPTION IS SERIOUS IN NATURE AND HAS TO PAY TH E PENALTY RANGING FROM 100% TO 300% OF THE TAX LIABILITY. AS THE PROVISIONS OF SECTION 271(1)(C) HAVE TO BE STRICTLY CONSTRUED, THE HONBLE HIGH COURT OF KARNATAKA MANDATED THAT THE NOTICE ISSUED SHOULD BE SET OUT THE GROUNDS WHICH THE ASSESSEE HAS TO ME ET SPECIFICALLY, OTHERWISE THE PRINCIPLES OF NATURAL JUSTICE WOULD BE OFFENDED AS THE SHOW CAUSE NOTICE WOULD BE VAGUE. ON THE SIMILAR FACTS, HONBLE SUPREME COURT DISMISSED THE SLP IN THE CASE OF SSAS EMERALD MEADOWS (2016) 73 TAXMAN.COM 248(SC). LD. DR S ARGUMENT THAT THE CASE IS DISTINGUISHABLE ON FACTS IS NOT ACCEPTABLE SINCE THE LD. DR RELIED ON THE PASSING OBSERVATION OF THE HONBLE HIGH COURT OF AP. IN THE ASSESSEES CASE, THE ISSUE IS THE DEFECTIVE NOTICE U/S 271(1)(C) BUT NOT THE PENALTY ORDER. UNLESS THE NOTICE ISSUED U/S 271(1)(C) IS VALID THE PENALTY ORDER CANNOT BE HELD TO BE VALID. THE ASSESSING OFFICER DID NOT STRIKE OFF THE IRRELEVANT COLUMN IN THE NOTICE AND MADE KNOWN THE ASSESSEE WHETHER THE PENALTY WAS INITIATED FOR THE 6 ITA NO. 239/VIZ/2019 C.O.NO.75/VIZ/2019 ( M/S. THE ARYAPURAM CO - OP URBAN BANK LTD. ) CONCEALMENT OF INCOME OR FOR FURNISHING THE INACCURATE PARTICULARS. IN THE ASSESSMENT ORDER ALSO THE AO SIMPLY RECORDED THAT THE PENALTY PROCEEDINGS U/S 271(1)(C) ARE INITIATED SEPARATELY. NEITHER IN THE ASSESSMENT ORDER NOR IN THE PENALTY NOTICE, THE ASSESSING OFFICE R HAS PUT THE ASSESSEE ON NOTICE FOR WHICH OFFENCE, THE PENALTY U/S 271 WAS INITIATED. THEREFORE, THE CASE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT OF CITED (SUPRA) WHEREIN THE HONBLE HIGH COURT HELD AS UNDER: ON PR INCIPLE, WHEN PENALTY PROCEEDINGS ARE SOUGHT TO BE INITIATED BY THE REVENUE UNDER SECTION 271(1)(C) OF THE ACT OF 1961, THE SPECIFIC GROUND WHICH FORMS THE FOUNDATION THEREFORE HAS TO BE SPELT OUT IN CLEAR TERMS OTHERWISE , ON ASSESEE WOULD NOT HAVE PROPER OPPORTUNITY TO PUT FORTH HIS DEFENCE. WHEN THE PROCEEDINGS ARE PENAL IN NATURE RESULTING IN IMPOSITION OF PENALTY RANGING FROM 100% TO 300% OF THE TAX LIABILITY, THE CHARGE MUST BE UNEQUIVOCAL AND UNAMBIGUOUS. WHEN THE CHARGE IS EITHER CONCEALMENT OF PARTI CULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS THEREOF , THE REVENUE MUST SPECI F Y AS TO WHICH ONE OF THE TWO IS SOUGHT TO BE PRESSED INTO SERVICE AND CANNOT BE PERMITTED TO CLUB BOTH BY INTERJECTING AN 'OR' BETWEEN THE TWO, AS IN THE PRESENT CASE. THIS AMBIGUITY IN THE SHOW - CAUSE NOTICE IS FURTHER COMPOUNDED PRESENTLY BY THE CONFUSED FINDING OF THE ASSESSING OFFICER THAT HE WAS SATISFIED THAT THE ASSESSEE WAS GUILTY OF BOTH. WE ARE THEREFORE OF THE OPINION THAT THE ORDER UNDER APPEAL DOES NOT BROO K INTERFERENCE ON ANY GROUND. WE FIND NO QUESTION OF LAW, MUCH LESS A SUBSTANTIAL ONE, ARISING FOR CONSIDERATION WARRANTING ADMISSION OF THIS APPEAL. 6.2. ON THE SIMILAR FACTS, THE COORDINATE BENCH OF ITAT, VISAKHAPATNAM IN ITA NO.229/VIZ/2015 IN THE CAS E OF NARAYANA REDDY ENTERPRISES, FOLLOWING THE ORDER OF THE COORDINATE BENCH IN THE CASE OF SMT. MAKINA ANNAPURNA VS. ITO, VISAKHAPATNAM IN ITA NOS.604 & 605/VIZAG/2014 DATED 2.2.2017 HELD THAT NON - STRIKING OF THE IRRELEVANT COLUMN RENDERS THE NOTICE ISSUE D U/S 271 AS INVALID. RESPECTFULLY, FOLLOWING THE DECISION OF THE HONBLE AP HIGH COURT CITED SUPRA AND THE DECISION OF THIS TRIBUNAL CITED (SUPRA), WE HOLD THAT THE NOTICE ISSUED U/S 271 IS INVALID AND CONSEQUENT PENALTY IMPOSED BY THE AO IS CANCELLED. 11 . WE FIND THAT THE HON'BLE HIGH COURT OF TELANGANA & A.P. IN THE CASE OF SMT. BAISETTY REVATHI (SUPRA) HAS CONSIDERED THE VERY SAME ISSUE AND HELD THAT NON - STRIKING OF THE IRRELEVANT PORTION OF 7 ITA NO. 239/VIZ/2019 C.O.NO.75/VIZ/2019 ( M/S. THE ARYAPURAM CO - OP URBAN BANK LTD. ) THE NOTICE ISSUED U/SEC. 274 IS INVALID. THE VERY SAME JUDGMENT HAS BEEN FOLLOWED BY THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF KONCHADA SREERAM (SUPRA) . T HEREFORE, RESPECTFULLY FOLLOWING ABOVE REFERRED TO JUDICIAL PRECEDENTS, WE HOLD THAT THE NOTICE ISSUED UNDER SECTION 271(1)(C) R.W.S. 274 , DATED 04/03/2014 IS INVALID AND CONSEQUENTIAL PENALTY ORDER PASSED BY THE ASSESSING OFFICER , DATED 16/12/2015 IS HEREBY CANCELLED. THUS, THIS APPEAL FILED BY THE REVENUE IS DISMISSED. 1 2 . IN REGARD TO C.O. FILED BY THE ASSESSEE IS CONCERNED, IT IS ONLY SUPPORTIVE TO THE O RDER OF THE LD. CIT(A). AS THERE IS NO GRIEVANCE AGAINST THE ORDER OF LD. CIT(A), THIS C.O. FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND IS DISMISSED ACCORDINGLY. 13 . IN THE RESULT, AP PEAL FILED BY THE REVENUE AND THE C.O. FILED BY THE ASSESSEE ARE DISMISSED . ORDER PRONOUNCED IN OPEN COURT ON TH IS 2 7 T H DAY OF SEPT. , 201 9 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 7 T H SEPTEMBER , 201 9 . VR/ - 8 ITA NO. 239/VIZ/2019 C.O.NO.75/VIZ/2019 ( M/S. THE ARYAPURAM CO - OP URBAN BANK LTD. ) COPY TO: 1. THE ASSESSEE M/S. THE ARYAPURAM CO - OPERATIVE URBAN BANK LTD., D.NO. 20 - 23 - 8, ARYAPURAM, RAJAHMUNDRY. 2. THE REVENUE ACIT, CIRCLE - 2(1), RAJAMAHENDRAVARAM. 3. THE PR. CIT , RAJAMAHENDRAVARAM . 4. THE CIT(A), RAJAMAHENDRAVARAM. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.