Hotel Saurab, Dehradun V. DCIT Central Circle, Dehradun

ITA 2434/DEL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8952 (ITAT-DEHRADUN)
• Duration Of Justice: 2 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 18-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: LOVESH KALRA
• Section: 271(1)(c); 274; 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DEHRADUN BENCH, DEHRADUN Before Sh. Amit Shukla, Judicial Member Dr. B. R. R. Kumar, Accountant Member (Through Video Conferencing) ITA No. 2434/Del/2019 : Asstt. Year : 2007-08 ITA No. 2435/Del/2019 : Asstt. Year : 2008-09 ITA No. 2436/Del/2019 : Asstt. Year : 2009-10 ITA No. 2437/Del/2019 : Asstt. Year : 2010-11 M/s Hotel Saurab, 1, Raja Road, Dehradun, Uttarakhand-248001 Vs DCIT, Central Circle, Dehradun, Uttarakhand (APPELLANT) (RESPONDENT) PAN No. AADFH4755J Assessee by : Sh. Lovesh Kalra, Adv. Revenue by : Sh. N. C. Upadhyay, Sr. DR Date of Hearing: 12.11.2021 Date of Pronouncement: 14.02.2022 ORDER Per Dr. B. R. R. Kumar, Accountant Member: The present appeals have been filed by the assessee against the orders of the ld. CIT(A)-IV, Kanpur dated 28.01.2019. 2. Since, the issues involved in both the appeals are identical, they were heard together and being adjudicated by a common order. 3. In ITA 2434/Del/2019, following grounds have been raised by the assessee: ITA Nos. 2434 to 2437/Del/2019 Hotel Saurab 2 “1. That on the facts and circumstances of the appellant’s case the learned CIT (A) grossly erred in confirming the penalty imposed on the appellant by the learned AO under section 271(1)(c) of the I T Act, 1961 amounting to Rs. 76,660/-. 2. That on the facts and circumstances of the appellant’s case the learned CIT (A) as also the learned AO before him grossly erred in not appreciating that imposition of penalty under section 271(1)(c) of the Act is not automatic to the confirmation of the addition, whether in part or in full, in the quantum appeal. 3. That on the facts and circumstances of the appellant’s case the learned CIT (A) grossly erred in not appreciating that the original notice issued by the learned AO for initiating the penalty proceedings, as also that issued by him, after the disposal of the first appeal, before imposition of the penalty, both, were invalid in as much as these did not spell out as for which specific alleged default of the appellant the penalty proposed was sought to be imposed by him on the appellant. 4. That on the facts and circumstances of the appellant’s case the learned CIT (A) grossly erred in not appreciating the true import of the case laws cited by the appellant and not even that of the case laws cited by him himself in his impugned order, to thwart the appellant’s valid contentions, to avoid following the applicable precedent cited before him.” 4. The assessment order has been passed u/s.153A on 28.02.2013 wherein the Assessing Officer mentioned that the “penalty proceedings u/s. 271(1)(c) have been initiated”. Subsequently penalty order u/s. 271(1)(c) has been passed on 31.03.2017 for “concealment of income of Rs.2,27,755/-“. The penalty thus levied has been confirmed by the ld. CIT(A). 5. Aggrieved the assessee filed appeal before us. ITA Nos. 2434 to 2437/Del/2019 Hotel Saurab 3 6. Heard the arguments of both the parties and perused the material available on record. 7. We have gone through the notice u/s. 271 r.w.s. 274 of the Income Tax Act, 1961 issued by the Assessing Officer on 28.02.2013. We find that the Assessing Officer has issued the notice of penalty, which reads as under: “Whereas in the course of proceedings before me for the above Assessment Year, it appears to me that you have concealed the particulars of your income or furnish inaccurate particulars of such income.” 8. On this issue, we are guided by the following judgments: 1) Karnataka High Court: CIT vs. Manjunatha Cotton and Ginning Factory: 359 ITR 565 held that notice under section 274 should specifically state the grounds mentioned in section 271(l)(c) of the Act, i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income. Sending printed form where all the grounds mentioned in section 271 are mentioned would not satisfy requirement of law. 2) Bombay High Court: Mr. Mohd. Farhan A. Shaikh Vs ACIT Section 271(l)(c): Penalty-Concealment-Non-striking off of the irrelevant part while issuing notice u/s 271(l)(c) of the Income Tax Act, order is bad in law. Assessee must be informed of the ground of the penalty proceedings only through statutory notice. An omnibus notice suffers from the vice of vagueness. ITA Nos. 2434 to 2437/Del/2019 Hotel Saurab 4 3) The Hon'ble jurisdictional Delhi High Court in the case of PCIT vs. Sahara India Life Insurance Co. Ltd. in ITA No. 475 of 2019, reiterated that notice under section 274 should specifically state the grounds on which penalty was sought to be imposed as the assessee should know the grounds which he has to meet specifically. 4) The aforesaid principle has been reiterated in the in the case of CIT vs. SSA'S Emerald Meadows: 73 taxmann.com 241 (Kar) [Revenue's SLP dismissed in 242 Taxman 180] 9. Hence, respectfully following the order of the Hon'ble Jurisdictional High Court, since the AO has not been specified u/s 274 as to whether penalty is proposed for alleged 'concealment of income' OR 'furnishing of inaccurate particulars of such income', the penalty levied is hereby obliterated. 10. In the result, all the appeals of the assessee are allowed. Order Pronounced in the Open Court on 14/02/2022. Sd/- Sd/- (Amit Shukla) (Dr. B. R. R. Kumar) Judicial Member Accountant Member Dated: 14/02/2022 *Subodh Kumar, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. 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