THE HOSHIARPUR CENTRAL CO-OP. BANK LTD., HOSHIARPUR V. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE, HOSHIARPUR

ITA 240/ASR/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2222 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 14-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 143(3); 201; 274; 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 239/Asr/2019 Assessment Year: 2010-11 Dy. Commissioner of Income Tax, Circle Hoshiarpur Vs. M/s. The Hoshiarpur Central Coop. Bank Ltd., Railway Road, Hoshiarpur [PAN: AAAAT 0384K] (Appellant) (Respondent) I.T.A. No. 240/Asr/2019 Assessment Year: 2010-11 M/s. The Hoshiarpur Central Coop. Bank Ltd., Railway Road, Hoshiarpur [PAN: AAAAT 0384K] Vs. Asstt. Commissioner of Income Tax, Circle Hoshiarpur (Appellant) (Respondent) Appellant by : Sh. Parveen Jindal, CA Respondent by: Sh. Amlendu Nath Misra, CIT DR Date of Hearing: 06.07.2022 Date of Pronouncement: 28.07.2022 ITA Nos. 239&240/Asr/2019 The Hoshiarpur Central Coop. B. Ltd. v. Dy./Asstt.CIT 2 ORDER Per Anikesh Banerjee, JM: The instant appeals were filed by the Revenue and the Assessee against the order passed by the Ld. Commissioner of Income Tax (Appeals)-1, Jalandhar [in brevity the CIT(A)], bearing Appeal No. 10014/16-17/CIT(A)-1/JAL dated 28.01.2019, passed u/s 250(6) of the Income Tax Act, 1961 [in brevity the Act], in respect of Assessment Year 2010-11. The impugned order was generated from the order of ld. Asstt. Commissioner of Income Tax, Circle Hoshiarpur [in brevity the AO] passed u/s 271(1)(c) of the Income Tax Act, dated 23.03.2016. 2. Tersely, we advert the following fact of the case. Both the cases are identical in nature and generated from a single order of the ld. CIT(A) for assessment year 2010-11. The assessment was completed u/s 143(3). The assessee finally received the order from ITAT with a direction related to the main addition. The ld. AO processed the penalty proceedings and levied the penalty on the basis of the addition made u/s 143(3) total amount of Rs. 3,48,71,356/-. The assessee filed an appeal against the penalty order of the ld. AO before the CIT(A). The appellate authority modified the penalty order and deleted the part penalty. The penalty was levied on two additions amount to Rs. 1,28,60,415/- related interest subvention on accrual basis and Rs. 18,84,820/- related account of prepaid expenses. For this issue the assessee filed an appeal before us bearing no. 240/Asr/2019. The ld. ITA Nos. 239&240/Asr/2019 The Hoshiarpur Central Coop. B. Ltd. v. Dy./Asstt.CIT 3 CIT(A) also deleted the additions on leave encashment amount to Rs. 2 Crore related the penalty amount of Rs.61,80,000/-. The Revenue filed an appeal against this deletion of the CIT(A) in reason that the ITAT had made the direction to set aside the particular issue before the Revenue. Till date, the matter is sub-judice. As per the revenue, deletion of penalty in this issue is bad in law. Accordingly, the Revenue filed an appeal before the ITA No. 239/Asr/2019 before us. 3. During hearing before us, the ld. counsel of the assessee filed an additional ground with paper book dated 03.06.2022 bearing page no. 201 to 208. The additional ground is restricted here as follows: “1). That in the facts and circumstances of the case and in the law the action of the Ld.CIT ( A) vide her order dated 28/01/2019 in partly confining the action of the Assessing Officer for levying the penalty u/s 271(l)(c) vide order dated 23/03/2016 is not sustainable in law for the reason that from the show cause notice dated 04/03/2013 of the Assessing Officer u/s 274 r.w.s. 271, it is not discernable whether it is for concealment of income or for furnishing of inaccurate particulars of income. In the Notice u/s 274 r.w.s. 271, the Assessing Officer has placed a tick mark {/) in the paragraph “have concealed particulars of your income or furnished inaccurate particulars of such income” but without deleting the inappropriate words and paragraphs which he was required to do so. 2). That the appellant may be allowed to add, amend, alter or raise additional grounds of appeal till the appeal is finally disposed of.” As per this ground the assessee challenged the notice initiated by the Assessing Officer dated 04.03.2013 related to penalty proceedings u/s 271(1)(c)/274 of the Act. The copy of notice is extracted here as follows: ITA Nos. 239&240/Asr/2019 The Hoshiarpur Central Coop. B. Ltd. v. Dy./Asstt.CIT 4 ITA Nos. 239&240/Asr/2019 The Hoshiarpur Central Coop. B. Ltd. v. Dy./Asstt.CIT 5 ITA Nos. 239&240/Asr/2019 The Hoshiarpur Central Coop. B. Ltd. v. Dy./Asstt.CIT 6 4. The ld. CIT-DR argued and relied on the fact of the case and brought for sustained the penalty order. 5. We heard the rival submissions and the documents available in the record. The additional ground is related to the covered issue. The different High Courts and the Tribunal already decided the issue in favour of the assessee related to issuance of notice u/s 271(1)(c) of the Act. Section 271(1)(c) is two limbs concealed income and inaccurate particulars of the income. Before issuing the notice, the ld. AO should specify the limb related to penalty proceedings. This particular notice it is a self-defective and the ld. AO did not mention the nature of concealment in the notice issued u/s 274/271(1)(c). The counsel laid down that in the absence of such specific notice, the notice would be invalid as held in various judicial pronouncements including the decision of Hon’ble Karnataka High Court in CIT V/s SAS’s Emerald Meadows (73 Taxmann.com 241) against which Special Leave Petition (SLP) filed by the department stood dismissed by Hon’ble Supreme Court which is reported as 73 Taxmann.com 248. The notice u/s 274/271(1)(c) of the Act is not carrying the specific limb. Therefore, this is a case where both the parts of the offences i.e., concealment of income as well as furnishing of inaccurate particulars of income were involved. The decision of Jaipur Tribunal (Third Member) in the case of Grass Field Farms and Resorts P. Ltd. (159 ITD 31) was referred to confirm the impugned penalty. ITA Nos. 239&240/Asr/2019 The Hoshiarpur Central Coop. B. Ltd. v. Dy./Asstt.CIT 7 Finally, respectfully following the binding judicial precedents as cited aforesaid, we are of the considered opinion that the impugned penalty is not sustainable on legal grounds. Hence, by deleting the same, we allow the appeal of the assessee. 6. In the result, the appeal of the Revenue in ITA No. 239/Asr/2019 is dismissed and appeal of the assessee in ITA No. 240/Asr/2019 is allowed. Order pronounced in the open court on 28.07.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order