Gulshan Yadav, Indore V. ITO 4 (5), Indore

ITA 473/Ind/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2840 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 18-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Question of law
• Section: 271(1)(c); 143(3)

Judgement Text

GULSHAN YADAV ITA NO.473/IND/2018 2 2. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL EARNING INCOME FROM PLYIN G OF TRUCKS AND FROM OTHER SOURCES AND FILED HIS RETURN OF INCOME F OR ASSESSMENT YEAR 2013-14 DECLARING INCOME OF RS.1,99,310/- ON 3 0.7.2013. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES WERE DUL Y SERVED. ASSESSMENT WAS COMPLETED U/S 143(3) DATED 25.01.201 6 ASSESSING INCOME AT RS.39,50,140/- . PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE INCOME. AGAINST THE LEVY OF PENALTY AT RS.7,41,629/- ASSESSEE FILED AN APPEAL BEFORE LD. CIT(A) BUT COUL D NOT SUCCEED. 3. THE ASSESSEE IS NOW IN APPEAL RAISING FOLLOWING GROUNDS OF APPEAL; 1.(A) PENAL TY OF RS.7,41,629/- U/S 27L(1)(C) IS UNLAWFUL AND A GAINST THE FACTS OF THE CASE: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. THE LD. ASSESSING OFFICER ERRED IN LEVYING PENALTY OF RS. 7,41.629/- U/S. 271(1)(C) O F THE ACT, WITHOUT LOOKING AT THE FACTS OF THE CASE AND AGAINST THE LAW, & : THE CIT (APPEALS) ERRED IN CONFIRMING THE SAME, THUS THE PENALTY SO IMPOSED IS ILLEGAL. UNJUS TIFIED AND BAD IN LAW,. HENCE NEEDS TO BE DELETED. L.(B) NO INACCURATE PARTICULARS OF INCOME FURNISHED BV THE ASSESSEE: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. THE LD. ASSESSING OFFICER ERRED IN GULSHAN YADAV ITA NO.473/IND/2018 4 4. AT THE OUTSET LD. COUNSEL FOR THE ASSESSE WHILE TAKING UP THE LEGAL GROUND ABOUT THE VALIDITY OF THE NOTICE ISSUE D U/S 274 R.W.S. 271(1)(C) OF THE ACT POINTING OUT MISTAKE IN THE PE NALTY NOTICE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAV OUR OF THE ASSESSEE BY THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX V/ S KULWANT SINGH BHATIA DATED 09.05.2018 (ITA 9 TO 14 OF 2018) WHEREIN IT WAS HELD THAT THE PENALTY U/S 271(1)(C) OF THE ACT IS N OT SUSTAINABLE IN LAW AS THE NOTICE WAS NOT SPECIFIC. HON'BLE COURT OBSERVED AS FOLLOWS:- ON DUE CONSIDERATION OF THE ARGUMENTS OF THE LEARN ED COUNSEL FOR THE APPELLANT, SO ALSO CONSIDERING THE FACT THAT THE GR OUND MENTIONED IN SHOW CAUSE NOTICE WOULD NOT SATISFY THE REQUIREMENT OF L AW, AS NOTICE WAS NOT SPECIFIC, WE ARE OF THE VIEW THAT LEARNED TRIBUNAL HAS RIGHTLY RELYING ON THE DECISION OF CIT V/S MANJUNATHA COTTON GINNING F ACTORY AND CIT V/S SSA'S EMERALD MEADOWS RIGHTLY ALLOWED THE APPEAL OF THE ASSESSEE AND SET ASIDE THE ORDER OF PENALTY IMPOSED BY THE AUTHO RITIES. NO SUBSTANTIAL QUESTION OF LAW IS ARISING IN THESE APPEALS. ITA. N O(S) 9/2018, 10/2018, 11/2018, 12/2018, 13/2018 AND 14/2018, FILED BY THE APPELLANT HAVE NO MERIT AND ARE HEREBY DISMISSED.' 5. LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGUE D AND SUPPORTED THE ORDERS OF LOWER AUTHORITIES. GULSHAN YADAV ITA NO.473/IND/2018 6 YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME AT 12 .00 PM ON 23- FEBRUARY-2016 AND SHOW CAUSE WHY AN ORDER IMPOSING PENALTY ON YOU SHOULD NOT BE MADE UNDER SECTION 271(1)(C) OF THE INCOME T AX ACT, 1961. IF YOU DO NOT WISH TO AVAIL YOURSELF OF THIS OPPORTUNITY OF BEING HEARD IN PERSON OR THROUGH AUTHORISED REPRESENTATIVE, YOU MAY SHOW CAUSE IN WR ITING OR BEFORE THE SAID DATE WHICH WILL BE CONSIDERED BEFORE ANY SUCH ORDER IS MADE UNDER SECTION 271. YOURS FAITHFULLY, SD/- (D.M. PANVALKAR) INCOME TAX OFFICER 4(5), INDOR E 7. FROM PERUSAL OF THE ABOVE SHOW CAUSE NOTICE WE F IND THAT THE LD.A.O HAS MERELY MENTIONED THE SECTION BUT THE SPE CIFIC CHARGE I.E. WHETHER THE PENALTY HAVE BEEN INITIATED FOR CONCEAL MENT OF PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME HAS NOT BEEN MENTIONED. NOW WHETHER SUCH TY PE OF NOTICE WHICH DOES NOT SPEAK ABOUT THE SPECIFIC CHARGE LEVE LED AGAINST THE ASSESSEE IS VALID AND TENABLE IN THE EYES OF LAW NE EDS TO BE EXAMINED IN THE LIGHT OF JUDGMENT RELIED BY LD. COU NSEL FOR THE ASSESSEE. 8. WE FIND THAT SIMILAR ISSUE CAME UP BEFORE THE JU RISDICTIONAL HIGH COURT IN THE CASE OF SHRI KULWANT SINGH BHATIA (SUPRA) WHEREIN THE HON'BLE COURT DISCUSSED THE JUDGMENT O F HON'BLE HIGH COURT IN THE CASE OF CIT V/S MANJUNATHA COTTON GINN ING FACTORY GULSHAN YADAV ITA NO.473/IND/2018 8 10. IN THE INSTANT APPEAL ALSO THE LD. A.O SHOULD B E CLEAR AS TO WHETHER THE ALLEGED ADDITION GOES UNDER THE LIMB OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PA RTICULARS OF INCOME. MERELY ISSUING NOTICE IN GENERAL PROFORMA WILL NEGATE THE VERY PURPOSE OF NATURAL JUSTICE AS HELD BY THE HON 'BLE APEX COURT IN THE CASE OF DILIP N SHRAF 161 TAXMANN 218 THAT THE QUASI- CRIMINAL PROCEEDINGS U/S 271(1)(C) OF THE ACT OUGHT TO COMPLY WITH THE PRINCIPLES OF NATURAL JUSTICE. 11. WE THEREFORE RESPECTFULLY FOLLOWING ABOVE REFER RED JUDGMENTS AND IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CAS E ARE OF THE CONSIDERED VIEW THAT THE ALLEGED NOTICE ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT IS INVALID, UNTENABLE AND SUFF ERS FROM THE INFIRMITY OF NON APPLICATION OF MIND BY THE ASSESSI NG OFFICER. WE ACCORDINGLY SET ASIDE THE FINDING OF LD. CIT(A) AND DIRECT TO DELETE THE PENALTY OF RS.7,41,629/- LEVIED U/S 271(1)(C) O F THE ACT ON THIS LEGAL GROUND ITSELF. WE ACCORDINGLY ALLOW GROUND N O.1(C) RAISED BY THE ASSESSEE ON THE LEGALITY OF THE PENALTY PROCEED INGS INITIATED U/S 271(1)(C) OF THE ACT. SINCE THE PENALTY U/S 271(1) (C) OF THE ACT HAS BEEN DEALT ON THE PRELIMINARY POINTS OTHER ARGUMENT S OF THE