Shriniwas Vitthal Siddam, Ahmednagar V. Income-tax Officer, Ward - 2, Ahmednagar

ITA 287/PUN/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8431 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 2 87 /P U N/201 8 / ASSESSMENT YEAR : 20 10 - 11 MR. SHRINIWAS VITTHAL SIDDAM, G - 123, VYANKTESH ENGINEERING WORKS, MIDC, AHMEDNAGAR - 414111 . / APPELLANT PAN: BMGPS1631C VS. THE INCOME TAX OFFICER , WARD 2 , AHMEDNAGAR . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI M.K. VERMA / DATE OF HEARING : 0 8 . 0 7 .201 9 / DATE OF PRONOUNCEMENT: 17 . 0 7 .201 9 / ORD ER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 2 , PUNE , DATED 1 2 . 1 0 .201 7 RELATING TO ASSESSMENT YEAR 20 1 0 - 11 AGAINST PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSES SEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE PENALTY LEVIED UNDER SECTION 271( 1 )(C) OF THE ACT BY HOLDING THAT THE AS SESSING OFFICER WAS JUSTIFIED IN LEVYING THE PENALTY. 2. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE PENALTY ORDER PASSED IN THIS CASE LEVYING PENALTY OF RS.3,06,100/ - U/S 271( 1 )(C) OF THE INCOME TAX ACT IS WITHOUT JURISDICTION, AB - INIT IO - VOID AND LEGALLY UNSUSTAINABLE. ITA NO. 287 /P U N/20 1 8 SHRINIWAS V. SIDDHAM 2 2.1 WHILE COMPLETING THE ASSESSMENT VIDE ORDER DATED 15 - 02 - 2013 THE ASSESSING OFFICER HAS NOT RECORDED ANY SATISFACTION ABOUT THE SPECIFIC LIMB/CHARGE/OFFENCE OF SECTION 271( 1 )(C) FOR WHICH THE PENALTY UNDER SECTION 271( 1 )(C) OF THE ACT HAS BEEN INITIATED. 2. 3 THE ASSESSING OFFICER HAS NOT STRUCK OFF THE IRRELEVANT LIMB/CHARGE/OFFENCE OF SECTION 271( 1 )(C) FROM THE PROFORMA NOTICE ISSUED UNDER SECTION 274 R.W.S. 271 ( 1 )(C) OF THE ACT. THUS THERE IS AMBIGUITY ABOUT THE LIMB /CHARGE/OFFENCE FOR WHICH THE SHOW CAUSE NOTICE HAS BEEN ISSUED. 2. 4 WHILE LEVYING THE PENALTY VIDE ORDER DATED 21 - 03 - 2017 THE ASSESSING OFFICER HAS NOT SPECIFIED ANY LIMB/CHARGE/OFFENCE OF SECTION 271( 1 )(C) OF THE ACT FOR WHICH THE PENALTY HAS BEEN LEVIE D. 3. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSING OFFICER WHILE LEVYING THE PENALTY HAS WRONGLY INVOKED EXPLANATION 1 TO SECTION 271( 1 )(C) OF THE ACT. 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. BECAUSE OF THE ISSUE INVOLVED, WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 4. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST LEVY OF PENALTY UNDE R SECTION 271(1)(C) OF THE ACT. 5 . BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING TOTAL INCOME OF 1,59,500/ - . THE CASE OF ASSESSEE WAS PICKED UP FOR SCRUTINY AND ADDITION OF 11,51,000/ - WAS MADE IN THE HANDS OF A SSESSEE ON ACCOUNT OF LONG TERM CAPITAL GAINS . THE ASSESSING OFFICER WHILE RECORDING SATISFACTION FOR INITIATING PENALTY PROCEEDINGS HAS FAILED TO MENTION SPECIFIC CHARGE I.E. FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. S IMILARLY, IN PENALTY ORDER ALSO IT HAS FAILED TO MENTION THE SPECIFIC CHARGE AND IN THE ABSENCE OF THE SAME, ORDER PASSED FOR LEVY OF PENALTY CANNOT STAND. ITA NO. 287 /P U N/20 1 8 SHRINIWAS V. SIDDHAM 3 6 . WE FIND SUPPORT FROM THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. SHRI SAMSON PERINCHERY (2017) 392 ITR 4 (BOM), WHEREIN IT WAS HELD THAT WHERE THERE IS NO PROPER SATISFACTION FOR INITIATING PENALTY PROCEEDINGS AND IN THE ABSENCE OF PROPER SHOW CAUSE NOTICE TO THE ASSESSEE, THERE IS NO MERIT IN LEVY OF PENALTY. IN THE PRESENT CASE , ASSESSING OFFICER HAS FAILED TO CONCLUDE WHICH LIMB OF SECTION 271(1)(C) OF THE ACT IS APPLICABLE, HENCE ORDER SUFFERS FROM INFIRMITY. ACCORDINGLY, WE DELETE THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE THUS, ALLOWED. 7 . IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 17 TH DAY OF JU LY , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 17 TH JULY , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 2 , PUNE ; 4. THE PR. CIT - 1 , PUNE ; 5. 6. , , / DR B , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE