Smt. Kanta Garg, D/o. Sh. Kesho Ram, Bathinda V. The Income Tax Officer, Bathinda

ITA 72/ASR/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3345 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-02-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 28-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PALWI NDER KAUR LD
• Assessee Lawyers: P N ARORA LD
• Keywords: Retrospective amendment; Question of law
• Section: 271(1)(c); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, A MRITSAR BEFORE SH. N.S.SAINI, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.72(ASR)/2016 ASSESSMENT YEAR:200 9-10 SMT. KANTA GARG, D/O SH. KESHO RAM, 4508, BANK STREET, BATHINDA. [PAN: AJRPG 4574H] VS. INCOME TAX OFFICER, WARD-2(1), BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N.ARORA (LD. ADV.) RESPONDENT BY: SMT. PALWI NDER KAUR (LD. CIT-DR) DATE OF HEARING: 19.02.2019 DATE OF PRONOUNCEMENT: 19.02.2019 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/A PPELLANT AGAINST THE ORDER IMPUGNED HEREIN DATED 30.11.2015 PASSED BY THE LD. CIT(A)-, BATHINDA U/S 250(6) OF THE INCOME TAX ACT, 19 61 (HEREINAFTER CALLED AS THE ACT). 2. THE ASSESSEE HAS RAISED THE SOLE GROUND OF APPEAL. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) HAS ERRED IN UPHOLDING THE PENALTY UNDER SEC TION 271(1)(C) OF THE ACT BY TREATING THE DEPOSIT OF RS.5 LACS IN BANK FR OM UNEXPLAINED SOURCES WHEREAS AS PER FACTS ON FILE AND EXPLANATION FURNIS HED, NO PENALTY ON ACCOUNT OF DEPOSIT OF RS.5 LACS WAS CALLED FOR. THE SAME BE DELETED. 3. THE ASSESSEE CHALLENGED THE PENALTY ORDER ON VARIOUS GROU NDS. IN THE INSTANT CASE, THE AO INITIATED PENALTY UNDER SECTION 27 1(1)(C) OF THE ACT FOR ITA NO.72 /ASR/2016 (A.Y.2009-10) SMT. KANT GARG, BATHINDA VS. ITO 2 CONCEALING THE PARTICULARS OF INCOME AND THEREAFTER ISSUE D THE NOTICE U/S 274 AND IMPOSED THE PENALTY WITHOUT SPECIFYING THE LIMB O F THE PENALTY, THEREFORE WE FIND IT APPROPRIATE TO DECIDE THE LEGAL ISSUE INVOL VED IN THE INSTANT CASE, INSTEAD OF GOING INTO MERITS AND ANALYZING THE FACTS A ND DECISIONS RELIED UPON BY THE PARTIES. 4. HON'BLE APEX COURT IN CASE OF M/S. SSA'S EMERALD MEADOWS, (2016) 73 TAXMANN.COM 248(SC) DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE REVENUE AGAINST THE JUDGMENT RENDERED BY HON'BLE HIGH COURT OF KARNATAKA WHEREBY IDENTICAL ISSUE WAS DECIDED IN FAVOUR OF THE ASSE SSEE. OPERATIVE PART OF THE JUDGMENT IN CASE OF M/S. SSA'S EMERALD MEADOWS (SUPRA) DECIDED BY HON'BLE HIGH COURT OF KARNATAKA IS REPRODUCED BELOW:- '2. THIS APPEAL HAS BEEN FILED RAIS ING THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW: (1) WHETHER, OMISSION IF ASSESSING OFFICER TO EXPLICITLY MENTION THAT PENALTY PROCEEDINGS ARE BEING INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OR THAT FOR CONCEALMENT OF INCOME MAKES THE PENALTY ORDER LIABLE FOR CANCELLATION EVEN WHEN IT HAS BEEN PROVED BEYOND REASONABLE DOUBT THAT THE ASSESSEE HAD CONCEALED INCOME IN THE FACTS AND CIRCUMSTANCES OF THE CASE? (2 WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN LAW IN. HOLDING THAT THE PENALTY NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) IS HAD IN LAW AND. INVALID INSPITE THE AMENDMENT OF SECTION 271(1 B) WITH RETROSPECTIVE EFFECT AND BY VIRTUE OF THE AMENDMENT, THE ASSESSING OFFICER HAS INITIATED THE PENALTY BY PROPERLY RECORDING THE SATISFACTION FOR THE SAME? ITA NO.72 /ASR/2016 (A.Y.2009-10) SMT. KANT GARG, BATHINDA VS. ITO 3 (3) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN DECIDING THE APPEALS AGAINST THE REVENUE ON THE BASIS OF NOTICE ISSUED, UNDER SECTION 274 WITHOUT TAKING INTO CONSIDERATION THE ASSESSMENT ORDER WHEN THE ASSESSING OFFICER HAS SPECIFIED THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME? 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY TH E 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 UPON THE DECISION OF THE DIVI SION BENCH OF THIS COURT RENDERED IN THE CASE OF COMMISSIONER OR INCOME T AX - VS - MANJUNATHA C OTTON AND G INNING F ACTORY (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 I N THIS APPEAL FOR DETERMINATION BY THIS COURT, THE APPEAL IS ACCORDINGLY DISMISSED.' 5. THE PENALTY PROVISIONS OF SECTION 271(1)(C) OF THE A CT ARE ATTRACTED WHERE THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. IT IS ALSO A WELL-ACCE PTED PROPOSITION THAT THE AFORESAID TWO LIMBS OF SECTION 271(1)(C) OF THE ACT CARRY DIFFERENT MEANINGS. THEREFORE, IT WAS IMPERATIVE FOR THE ASSESSING OFFICER TO STRIKE - OFF THE IRRELEVANT LIMB SO AS TO MAKE THE ASSESSEE AWARE AS TO WHAT IS THE CHARGE MADE AGAINST HIM SO THAT HE CAN RESPOND ACCORDINGLY. TH E HON'BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY, 359 ITR 565 ITA NO.72 /ASR/2016 (A.Y.2009-10) SMT. KANT GARG, BATHINDA VS. ITO 4 (KAR) OBSERVED THAT THE LEVY OF PENALTY HAS TO BE CLEA R AS TO THE LIMB UNDER WHICH IT IS BEING LEVIED. AS PER HON'BLE HIGH COURT, WHE RE THE ASSESSING OFFICER PROPOSED TO INVOKE FIRST LIMB BEING CONCEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. THE HON'BLE HIGH COURT HELD THAT THE STANDARD PROFORMA OF NOTICE UNDER SECTION 274 OF THE ACT WITHOUT STRIKING OF THE IRRELEVANT CLAUSES WOULD LEAD TO AN INFERENCE OF NON-AP PLICATION OF MIND BY THE ASSESSING OFFICER. THE HON'BLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF VS. JCIT, 291 ITR 519(SC) HAS ALSO NOTICED THAT WHERE THE ASSESSING OFFICER ISSUES NOTICE UNDER SECTION 274 OF THE ACT IN THE STANDARD PROFORMA AND THE INAPPROPRIATE WORDS ARE NOT DELETED, THE SAME WOULD P OSTULATE THAT THE ASSESSING OFFICER WAS NOT SURE AS TO WHETHER HE WAS TO PROCEE D ON THE BASIS THAT THE ASSESSEE HAD CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. ACCORDING TO THE HON'BLE SUPREME COURT, IN SUCH A SITUATION, LEVY OF PENALTY SUFFERS FROM NON-APPL ICATION OF MIND. IN THE BACKGROUND OF THE AFORESAID LEGAL POSITION AND, HAVING REGARD TO THE MANNER IN WHICH THE ASSESSING OFFICER HAS ISSUED NOTICE UNDER SECTIO N 274 R.W.S. 271(1)(C) OF THE ACT DATED 20-12-2011 WITHOUT STRIKING OFF THE IRRELEVANT WORDS, APPARENTLY GOES TO PROVE THAT THE ASSESSING OFFICE R INITIATED THE PENALTY PROCEEDINGS BY ISSUING THE NOTICE U/S 274/271( 1)(C) OF THE ACT WITHOUT SPECIFYING WHETHER THE ASSESSEE HAS CONCEALED ''PARTICULARS OF INCOME' OR ASSESSEE HAS FURNISHED 'INACCURATE PARTICULARS OF INCOME', SO AS TO PROVIDE ADEQUATE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE SHOW CAUSE NOTICE. RATHER NOTICE IN THIS CASE HAS BEEN ISSUED IN A STEREOTYPE D MANNER WITHOUT APPLYING MIND WHICH IS BAD IN LAW, HENCE CAN NOT CONSID ER A VALID NOTICE SUFFICIENT TO IMPOSE PENALTY U/S 271(1)(C) OF THE ACT. E VEN THE MIND OF THE AO, WHILE ISSUING NOTICE U/S 274 OF THE ACT AND IMPOSING THE PENALTY ITSELF, WAS NOT CLEAR AS TO UNDER WHICH LIMB, THE ASSESSEE HAD TO REPLY AND TO DEFEND ITS CASE, THEREFORE WE ARE OF THE VIEW THAT UNDER THESE CIRCUMSTANCES, THE ITA NO.72 /ASR/2016 (A.Y.2009-10) SMT. KANT GARG, BATHINDA VS. ITO 5 PENALTY IS NOT LEVIABLE AS HELD BY THE VARIOUS COURT I NCLUDING APEX COURT AND HENCE, WE HAVE NO HESITATION TO DELETE THE PENALTY LE VIED BY THE AO. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.02.2019. SD/- SD/- (N.S.SAINI) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED: 19.02.2019 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. SMT. KANTA GARG, D/O SH. KESHO RAM, 4508, BANK STREEF, BATHINDA. (2) THE ITO, WARD-2(1), BATHINDA. (3) THE CIT(A), BATHINDA (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER FILENAME: KANTA GARG 72-16 DIRECTORY: G: TEMPLATE: C:\USERS\ETC PARMOD\APPDATA\ROAMING\MICROSOFT\TEMPLATES\NORMAL.D OT TITLE: IN THE INCOME TAX APPELLATE TRIBUNAL SUBJECT: AUTHOR: RAHUL PRABHAKAR KEYWORDS: COMMENTS: CREATION DATE: 2/20/2019 2:39:00 PM CHANGE NUMBER: 10 LAST SAVED ON: 2/26/2019 12:09:00 PM LAST SAVED BY: ETC PARMOD TOTAL EDITING TIME: 4 MINUTES LAST PRINTED ON: 2/26/2019 12:11:00 PM AS OF LAST COMPLETE PRINTING NUMBER OF PAGES: 6 (APPROX.) NUMBER OF WORDS: 1,311 (APPROX.) NUMBER OF CHARACTERS: 7,479 (APPROX.)