Minu Bakshi, New Delhi V. ACIT, New Delhi

ITA 3118/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1763 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 17-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Question of law
• Section: 271(1)(c); 143(3); 142(1); 153A; 274; 143(2); 73; 6; 132; 154

Judgement Text

1 ITA NO. 3118/DEL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A. NO. 3118/DEL/2017 (A.Y 2007-08) MINU BAKSHI, 4, KAUTILYA MARG, NEW DELHI. (AAEPB 1799 F) (APPELLANT) VS ACIT, CENTRAL CIRCLE-26, ROOM NO.323, ARA CENTRE, E-2, JHANDEWALAN EXTN., NEW DELHI. ( RESPONDENT) APPELLANT BY SHRI K.V.S.R. KRISHNA, C.A. RESPONDENT BY MS. RINKU SINGH, SR. D.R. ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS]-31, NEW DELHI DATED 22.02.2017 FOR ASSESSMENT YEAR 2007-08. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE PENALTY U/S 271(1)(C) LEVIED BY THE AO. THE PENALTY LEVIED IS WRONG AND BAD IN LAW AND SHOULD BE DELETED. 2. WHETHER THE PENALTY IS FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME IS NOT EVIDENT FROM THE NOTICE NOR FROM THE PENALTY ORDER. PENALTY PROVISIONS BEING QUASI-JUDICIAL, UNLESS THERE IS SPECIFIC CHARGE, THERE CANNOT BE ANY LEVY OF PENALTY. THEREFORE THE ORDER LEVYING PENALTY IS WRONG AND BAD IN LAW. 3. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE APPELLANT HAS VOLUNTARILY DECLARED THE INCOME AND PAID TAXES THEREON. HENCE THE PENALTY SHOULD BE DELETED. DATE OF HEARING 10.12.2019 DATE OF PRONOUNCEMENT 11.12.2019 2 ITA NO. 3118/DEL/2017 4. THE ABOVE GROUNDS ARE INDEPENDENT TO EACH OTHER. 5. THE APPELLANT MAY BE ALLOWED TO ADD, AMEND, ALTER OR FORGO ANY OF THE ABOVE GROUND. 3. THE ASSESSEE IS AN INDIVIDUAL AND FILED THE RETURN OF INCOME ON 31.08.2007 FOR A.Y. 2007-08 SHOWING A TOTAL INCOME OF RS.11,76,296/-. THEREAFTER, A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CONDUCTED ON 10.12.2012 IN THE BAKSHI GROUP OF CASES WHEREIN THE PREMISES OF THE ASSESSEE WAS ALSO SEARCHED. ACCORDINGLY, PROCEEDINGS U/S 153A WERE INITIATED IN THIS CASE. A NOTICE U/S 153A OF THE ACT WAS ISSUED REQUIRING THE ASSESSEE TO FURNISH THE TRUE AND CORRECT RETURN OF INCOME. IN RESPONSE THERETO, THE RETURN OF INCOME WAS FILED U/S 153A SHOWING A TOTAL INCOME OF RS.9,61,76,296/-. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 142(1) ALONG WITH THE QUESTIONNAIRE WERE ISSUED BY THE ASSESSING OFFICER. THE ASSESSMENT WAS COMPLETED U/S 143(3) VIDE ORDER DATED 27.03.2015 BY THE ASSESSING OFFICER AT AN INCOME OF RS.9,61,76,296/-, MAKING AN ADDITION OF RS.9,50,000/- ON ACCOUNT OF UNACCOUNTED CASH RECEIPT. PENALTY PROCEEDINGS U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WERE INITIATED IN RESPECT OF THE SAID ADDITION. THE PENALTY ORDER LEVYING A CONCEALMENT PENALTY OF RS.3,19,77,000/- WAS PASSED ON 29.09.2015 WHICH WAS RECTIFIED UNDER SECTION 154 VIDE ORDER DATED 14.06.2016, THEREBY LEVYING PENALTY AT RS. 2,13,18,000/-. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) ERRED IN CONFIRMING THE PENALTY U/S 271(1)(C) OF THE ACT AS UNDER WHICH LIMB OF SECTION 271(1)(C), THE PENALTY IS LEVIED WAS NOT MENTIONED IN THE NOTICE ISSUED UNDER SECTION 271(1)(C) READ WITH SECTION 274 OF THE ACT. THE LD. AR SUBMITTED THAT WHETHER THE PENALTY IS FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME WAS NOT EVIDENT FROM THE NOTICE NOR FROM THE PENALTY ORDER AS WELL. THE LD. AR FURTHER SUBMITTED THAT THE PENALTY PROVISION BEING QUASI JUDICIAL, UNLESS THERE IS SPECIFIC CHARGE THERE CANNOT BE LEVY OF PENALTY. THEREFORE, THE ORDER LEVYING 3 ITA NO. 3118/DEL/2017 PENALTY IS WRONG AND BAD IN LAW. THE LD. AR RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF CIT VS. SSAS EMERALD MEADOWS (2016) 73 TAXMAN.COM 248 (SC) AND CIT V. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565 (KAR). THE LD AR FURTHER SUBMITTED THAT THE HONBLE DELHI HIGH COURT IN CASE OF PR. CIT VS. M/S. SAHARA INDIA LIFE INSURANCE COMPANY LTD. (ITA NO.475/2019 VIDE ORDER DATED 02.08.2019) HELD THAT NOTICE ISSUED BY THE ASSESSING OFFICER WOULD BE BAD IN LAW IF IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE PENALTY PROCEEDINGS HAD BEEN INITIATED. 6. THE LD. DR SUBMITTED THAT THE PENALTY ORDER IS VERY CLEAR THAT THE PENALTY IS IMPOSED ON CONCEALMENT OF INCOME AND, THEREFORE, MERELY NOT MENTIONING THE SPECIFIC LIMB OF SECTION 271(1)(C) WILL NOT MAKE THE PENALTY ORDER BAD IN LAW. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RELEVANT MATERIALS AVAILABLE ON RECORD. FIRST OF ALL, IN THE NOTICE ISSUED U/S 274 R.W.S 271(1)(C) OF THE INCOME TAX ACT, 1961, THERE WAS NO SPECIFIC CHARGES AS RELATES TO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. FROM THE NOTICE DATED 27/3/2015 PRODUCED BY THE LD. AR DURING THE HEARING, IT CAN BE SEEN THAT THE ASSESSING OFFICER WAS NOT SURE UNDER WHICH LIMB OF PROVISIONS OF SECTION 271 OF THE INCOME TAX ACT, 1961, THE ASSESSEE IS LIABLE FOR PENALTY. BESIDES THAT THE ASSESSMENT ORDER ALSO DID NOT SPECIFY THE CHARGE AS TO WHETHER THERE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME IN ASSESSEES CASE. BESIDES THIS, THE PRESENT CASE IS RELATING TO SEARCH CONDUCTED BY THE REVENUE IN THE PREMISES OF THE ASSESSEE, WHILE THE DECISION RELIED BY THE ASSESSING OFFICER AS WELL AS CIT (A) THAT OF HONBLE SUPREME COURT IN CASE OF MAK DATA P. LTD. VS. CIT 358 ITR 593 IS RELATING TO SURVEY AND THERE IS NO ISSUE INVOLVED ABOUT THE NOTICE ISSUED U/S 271(1)(C) R.W.S. 274 OF THE ACT. THIS CASE RELIED BY THE REVENUE IS NOT APPLICABLE IN THE PRESENT CASE DUE TO THE DISTINGUISHING FACTS. SIMILARLY, THE DECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF CIT VS. ZOOM COMMUNICATION PVT. LTD. 4 ITA NO. 3118/DEL/2017 327 ITR 510 WILL ALSO NOT BE APPLICABLE IN THE PRESENT CASE AS THE SAID CASE IS NOT THAT OF SEARCH CASE. THERE IS SEPARATE PROVISION FOR PENALTY IN SEARCH CASES GIVEN UNDER THE STATUTE AFTER 01.07.2012 THAT OF SECTION 271AAB OF THE ACT WHICH WAS TOTALLY IGNORED BY THE ASSESSING OFFICER. WHILE DEALING WITH THIS CONTENTION, THE CIT(A) HAS TAKEN THE DUE DATE THAT OF FILING OF RETURN OF INCOME I.E. 31.08.2007 WHICH IS CONTRARY TO SECTION 271AAB OF THE INCOME TAX ACT, 1961. THUS, THE PENALTY ITSELF IS BASED ON INCORRECT SECTION. THEREFORE WE ARE TAKING UP THE CONTENTION OF THE ASSESSEE THAT THERE IS NO PARTICULAR LIMB MENTIONED IN THE NOTICE ISSUED UNDER SECTION 271(1)(C) R.W.S. 274 OF THE ACT. THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF M/S SSA EMERALD MEADOW. THE EXTRACT OF THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN M/S SSA EMERALD MEADOWS ARE AS UNDER WHICH WAS CONFIRMED BY THE HONBLE APEX COURT: '3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT') TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE, HAS RELIED ON THE ITA NO. 4913/DEL/2015 DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDGMENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL QUESTION OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDINGLY DISMISSED.' THUS, ADDITIONAL GROUND NO. (II) OF THE ASSESSEE'S APPEAL IS ALLOWED. SINCE THE INCEPTION OF THE NOTICE ISSUED U/S 271(1)(C) HAS BECOME NULL AND VOID, THERE IS NO NEED TO COMMENT ON MERIT OF THE CASE. THE PENALTY U/S 271(1)(C) OF THE ACT IS QUASHED. SINCE IN THE INSTANT CASE ALSO THE INAPPROPRIATE WORDS IN THE PENALTY NOTICE HAS NOT BEEN STRUCK OFF AND THE NOTICE DOES NOT SPECIFY AS TO UNDER WHICH LIMB OF THE PROVISIONS, THE PENALTY U/S 271(1)(C) HAS BEEN INITIATED, 5 ITA NO. 3118/DEL/2017 THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE PENALTY LEVIED U/S 271(1)(C) IS NOT SUSTAINABLE AND HAS TO BE DELETED. ALTHOUGH THE LD. DR SUBMITTED THAT MERE NON-STRIKING OFF OF THE INAPPROPRIATE WORDS WILL NOT INVALIDATE THE PENALTY PROCEEDINGS, HOWEVER, THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA) WHERE THE SLP FILED BY THE REVENUE HAS BEEN DISMISSED IS DIRECTLY ON THE ISSUE CONTESTED HEREIN BY THE ASSESSEE. FURTHER, WHEN THE NOTICE IS NOT MENTIONING THE CONCEALMENT OR THE FURNISHING OF INACCURATE PARTICULARS, THE RATIO LAID DOWN BY THE HONBLE HIGH COURT IN CASE OF M/S. SAHARA INDIA LIFE INSURANCE COMPANY LTD. (SUPRA) WILL BE APPLICABLE IN THE PRESENT CASE. THE HONBLE DELHI HIGH COURT HELD AS UNDER: 21. THE RESPONDENT HAD CHALLENGED THE UPHOLDING OF THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT, WHICH WAS ACCEPTED BY THE ITAT. IT FOLLOWED THE DECISION OF THE KARNATAKA HIGH COURT IN CIT V. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 (KAR) AND OBSERVED THAT THE NOTICE ISSUED BY THE AO WOULD BE BAD IN LAW IF IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) THE PENALTY PROCEEDINGS HAD BEEN INITIATED UNDER I.E. WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE KARNATAKA HIGH COURT HAD FOLLOWED THE ABOVE JUDGMENT IN THE SUBSEQUENT ORDER IN COMMISSIONER OF INCOME TAX V. SSAS EMERALD MEADOWS (2016) 73 TAXMAN.COM 241(KAR), THE APPEAL AGAINST WHICH WAS DISMISSED BY THE SUPREME COURT OF INDIA IN SLP NO. 11485 OF 2016 BY ORDER DATED 5 TH AUGUST, 2016. 22. ON THIS ISSUE AGAIN THIS COURT IS UNABLE TO FIND ANY ERROR HAVING BEEN COMMITTED BY THE ITAT. NO SUBSTANTIAL QUESTION OF LAW ARISES. THUS, NOTICE UNDER SECTION 271(1)(C) R.W.S. 274 OF THE ACT ITSELF IS BAD IN LAW. WE, THEREFORE, SET-ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO CANCEL THE PENALTY SO LEVIED. 6 ITA NO. 3118/DEL/2017 8. IN RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH DAY OF DECEMBER, 2019 . SD/- SD/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11/12/2019 PRITI YADAV, SR. PS * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI