K. Ramachandra Reddy, V. DCIT,

ITA 73/BANG/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89968 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 16-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MALLAH RAO
• Keywords: Principle of natural justice; Initiation of penalty proceedings

Judgement Text

ITA.73/BANG/2014 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'A', BANGALORE BEFORE ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI. VIJAYPAL RAO, JUDICIAL MEMBER I.T.A NO.73/BANG/2014 (ASSESSMENT YEAR : 2005-06) SHRI. K. RAMACHANDRA REDDY, NEAR PETROL BUNK, SIRUGUPPA ROAD, HAVAMBAVI, BELLARY 583 102 .. APPELLANT PAN : AFWPR0491R V. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE -1(3), BANGALORE .. RESPONDENT ASSESSEE BY : SHRI. MALLAH RAO, ADVOCATE REVENUE BY : SHRI. P. DHIVAHAR, JCIT HEARD ON : 04.06.2015 PRONOUNCED ON : .06.2015 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY ASSESSEE, IT ASSAILS A PEN ALTY LEVIED U/S.271(1)(C) OF THE INCOME-TAX ACT, 1961 (THE ACTIN SHORT), WHICH WAS CONFIRMED BY THE CIT (A), VIDE HIS ORDER DT.31.10.2013, FOR THE A. Y. 20 05-06. 02. ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUND. AS PER THE ASSESSEE, THE ADDITIONAL GROUND WHICH CHALLENGES THE VALIDITY OF THE PENALTY ORDER DUE TO ITA.73/BANG/2014 PAGE - 2 VAGUENESS IN THE NOTICE ISSUED, GOES TO THE ROOT OF THE MATTER AND DOES NOT NEED ANY FRESH VERIFICATION OF THE FACTS. LD. DR, ON TH E OTHER HAND SUBMITTED THAT THE ADDITIONAL GROUND REGARDING THE VALIDITY OF THE NOT ICE WAS NEVER RAISED BEFORE THE CIT (A). 03. WE FIND THAT THE QUESTION REGARDING THE VALIDIT Y OF THE NOTICE ISSUED TO THE ASSESSEE PRIOR TO LEVY OF PENALTY U/S.271(1)(C) OF THE ACT, IS A LEGAL ISSUE WHICH CAN BE ADJUDICATED AT ANY POINT SINCE IT GOES TO TH E ROOT OF THE MATTER. ADDITIONAL GROUND IS THEREFORE ADMITTED. 04. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT TH E NOTICE ISSUED TO THE ASSESSEE U/S.274 R.W.S. 271(1)(C) OF THE ACT WAS VAGUE AND D ID NOT POINT OUT WHAT WAS THE FAILURE ON THE PART OF ASSESSEE. WHETHER THE ASSES SEE HAD CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF INCOME WAS NOT MENTIONED AND THEREFORE THERE WAS NO CLARITY AS TO HOW THE ASSESSEE SHOULD ADDRESS THE POINTS RAISED BY THE AO. ACCORDING TO HIM, IN VIEW OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF CIT V. M/S. MANJUNATHA COTTON & GINNING FACTORY [(2013) ( 92 DTR 0111), TH E PENALTY ORDER WOULD NOT STAND. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE COORDINATE BENCH IN THE CASE OF SMT. MADHU SOLANKI V. ITO (ITA NO.528/BANG/ 2011, DT 20.09.2013). 05. PER CONTRA, LD. DR SUBMITTED THAT THOUGH THE N OTICE AS SUCH DID NOT EXACTLY SPECIFY THE NATURE OF FAILURE OF THE ASSES SEE, THE AO HAD CLEARLY SPECIFIED IN THE ASSESSMENT ORDER THAT HE WAS INITI ATING THE PENALTY PROCEEDINGS ITA.73/BANG/2014 PAGE - 3 FOR CONCEALMENT. THIS WOULD, ACCORDING TO LD. DR, SUFFICE THE REQUIREMENT OF LAW. IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'C', BANGALORE BEFORE SHRI. N. V. VASUDEVAN, JUDICIAL MEMBER AND SHRI. ABRAHAM P. GEORGE, ACCOUNTANT MEMBER I.T.A NO.231/BANG/2015 (ASSESSMENT YEAR : 2006-07) SMT. LATHA DEVI PROPX : BABULAL ROOPAJI & CO., 1 ST CROSS, BAZAAR STREET, MANDYA ..APPELLANT PAN : ADYPD0879M V. INCOME-TAX OFFICER, WARD 1, MANDYA ..RESPONDENT ASSESSEE BY : SHRI. H. N. KHINCHA, CA REVENUE BY : DR. SHANKAR PRASAD K, JCIT HEARD ON : 16.06.2015 PRONOUNCED ON : .06.2015 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY ASSESSEE, IT ASSAILS THE LE VY OF PENALTY OF RS.89,752/-, U/S.271(1)(C) OF THE INCOME-TAX ACT, 1961 (THE ACT IN SHORT), WHICH WAS CONFIRMED BY THE CIT (A), MYSURU, VIDE ORDER DT.14. 11.2014. ITA.73/BANG/2014 PAGE - 4 02. ASSESSEE IN ONE OF ITS GROUNDS STATES THAT IN ITIATION OF PENALTY WAS NOT IN ACCORDANCE WITH LAW AND THEREFORE, LEVY OF PENALTY WAS VOID-AB-INITIO. 03. LD. COUNSEL FOR THE ASSESSEE AT THE OUT SET POI NTED OUT THAT NOTICE ISSUED U/S.274 R.W.S. 271(1)(C) OF THE ACT, PLACED AT PAPER BOOK PAGE 53 WAS VAGUE AND DID NOT POINT OUT THE DEFAULT OF THE ASSE SSEE AS TO WHETHER IT WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. ACCORDING TO HIM, THERE WAS NO CLARITY AS TO WHAT POINTS THE ASSESSEE SHOULD ADDRESS IN HIS REPLY. AS PER THE AO, IN VIEW OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T V. M/S. MANJUNATHA COTTON & GINNING FACTORY [(2013) ( 92 DTR 0111), THE PENAL TY ORDER WOULD NOT STAND. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE COO RDINATE BENCH IN THE CASE OF SMT. MADHU SOLANKI V. ITO (ITA NO.528/BANG/2011, DT 20.09.2013). 04. PER CONTRA, LD. DR SUBMITTED THAT THOUGH THE N OTICE AS SUCH DID NOT EXACTLY SPECIFY THE NATURE OF FAILURE OF THE ASSES SEE, THE AO HAD CLEARLY SPECIFIED IN THE ASSESSMENT ORDER THAT HE WAS INITI ATING THE PENALTY PROCEEDINGS FOR CONCEALMENT. THIS WOULD, ACCORDING TO LD. DR, SUFFICE THE REQUIREMENT OF LAW. 05. WE HAVE PERUSED THE MATERIALS ON RECORD AND HEA RD THE RIVAL SUBMISSIONS. IN THE CASE OF SMT. MADHU SOLANKI V. ITO (ITA NO.528/BANG/2011, DT 20.09.2013), THIS TRIBUNAL HAD , RELYING ON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. M/S. MANJUNATHA COTTON & GINNING FACTORY (359 ITR 565) HELD AS UNDE R AT PARAS 15 TO 17 : ITA.73/BANG/2014 PAGE - 5 15. THE FIRST LEGAL QUESTION IS WHETHER THE NOTICE U/S 274 R.W.S.271 IS VALID. THE LEARNED DRS OBJECTION IS THAT THE ASSES SEE HAS NOT RAISED ANY SPECIFIC GROUND OF APPEAL ON THIS ISSUE. HOWEVE R, WE FIND IN THE GROUND OF APPEAL NO.2, THE ASSESSSEE HAS RAISED AN OBJECTION THAT THE ORDER OF PENALTY PASSED BY THE LD.AO U/S271(1) OF T HE IT ACT, IS WITHOUT JURISDICTION AS THE MANDATORY CONDITION FOR INVOKIN G PROVISION OF SEC.271(1)(C ) OF THE ACT HAS NOT BEEN COMPILED WIT H. THEREFORE, WE HAVE TO EXAMINE WHETHER MANDATORY CONDITIONS FOR INITIAT ING THE PROCEEDINGS U/S 271(1)(C ) WERE COMPLIED WITH OR NOT. WHAT ARE THE MANDATORY CONDITIONS FOR INVOKING THE PROVISION OF SEC.271(1) (C ) OF THE ACT? ONE OF THE MANDATORY CONDITIONS IS THAT HE NOTICE U/S 2 74 R.W.S. 271 MUST BE VALID NOTICE. IN VIEW OF THE SAME, WE PROCEED TO AD JUDICATE THIS GROUND OF APPEAL. 16. AS SEEN FROM THE NOTICE ISSUED U/S 271(1)(C) OF THE IT ACT, IT IS DATED 29-03-2002 ADDRESSED TO THE ASSESSEE FOR THE ASSESS MENT YEAR 1998-99. IT IS IN THE PRESCRIBED FORM WITH THE BLANKS TO BE FILLED UP BY THE RELEVANT INFORMATION. AT THE BOTTOM OF THE NOTICE ON PAGE-2, IT IS MENTIONED THAT INAPPROPRIATE WORDS AND PARAGRAPHS ARE TO BE DELETE D. HOWEVER, WE FIND THAT THE AO EXCEPT FROM THE ASSESSMENT YEAR AN D STRIKING OFF PARA 2 OF THE NOTICE HAS NOT FILLED UP ANY OTHER BLANKS NO R HAS HE STRUCK OFF ANY OTHER INAPPROPRIATE WORDS OR PARAGRAPHS. PARA-4 MEN TION BOTH THE CONCEALMENT OF PARTICULARS OF INCOME AS WELL AS FUR NISHING OF INACCURATE PARTICULARS OF SUCH INCOME. THE AO HAS N OT SPECIFIED AS TO WHICH OF THE CONDITIONS FOR INITIATING PENALTY IS F ULFILLED. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. M/S MANJUNATHA COTTON & GINNING FACTORY (2013) PAGE 93 PARA 59 TO 61 HAS CONSIDERED THIS ISSUE AT LENGTH AND HAS HELD THAT CLAUSE(C ) OF THE PRINTED FORM OF NOTICE U/S 274 DEALS WITH TWO SATISFACTIONS I.E. CONCEALME NT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF I NCOME. THE HONBLE HIGH COURT HAS HELD THAT BOTH THE CONDITIONS ARE DI FFERENT AND DISTINCT THOUGH AT TIMES THEY MAY OVERLAP WITH EACH OTHER. I T WAS HELD THAT AO WHILE ISSUING NOTICE U/S 274 HAS TO COME TO THE CON CLUSION AS TO WHETHER IT IS CASE OF CONCEALMENT OF INCOME OR IT IS A CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AND IF THE STANDAR D PROFORMA WITHOUT DELETING THE RELEVANT CLAUSE IS ISSUED, IT LEADS TO AN INFERENCE AS TO NON- APPLICATION OF MIND BY THE AO. THE RELEVANT PORTION OF THE HONBLE HIGH COURTS ORDER IS REPRODUCED HEREUNDER: 59. AS THE PROVISION STANDS, THE PENALTY PROCEEDIN GS CAN BE INITIATED ON VARIOUS GROUNDS SET OUT THEREIN. IF TH E ORDER PASSED BY THE AUTHORITY CATEGORICALLY RECORDS A FINDING RE GARDING THE EXISTENCE OF ANY SAID GROUNDS MENTIONED THEREIN AND THEN PENALTY ITA.73/BANG/2014 PAGE - 6 PROCEEDINGS IS INITIATED, IN THE NOTICE TO BE ISSUE D U/S 274, THE COULD CONVENIENTLY REFER TO THE SAID ORDER WHICH CO NTAINS THE SATISFACTION OF THE AUTHORITY WHICH HAS PASSED THE ORDER. HOWEVER, IF THE EXISTENCE OF THE CONDITIONS COULD N OT BE DISCERNED FROM THE SAID ORDER AND IF IT IS A CASE OF RELYING ON DEEMING PROVISION CONTAINED IN EXPLANATION 1 OR IN EXPLANAT ION(B), THEN THOUGH PENALTY PROCEEDINGS ARE IN THE NATURE OF CIV IL LIABILITY, IN FACT, IT IS PENAL IN NATURE. IN EITHER EVENT, THE P ERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED INSEC.271 SHOUL D BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THEY INTEND IMPOSI NG PENALTY ON HIM AS THE SEC.274 MAKES FT C/EAR THAT ASSESSEE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HAVE FULL OPPOR TUNITY TO MEET THE CASE OF THE DEPARTMENT AND SHOW THAT THE C ONDITIONS STIPULATED IN SEC.271(1)(C) DO NOT EXIST AS SUCH HE IS NOT LIABLE TO PAY PENALTY. THE PRACTICE OF THE DEPARTMENT SENDING A PRINTED FORM WHERE AS THE GROUND MENTIONED IN SEC.27! ARE M ENTIONED WOULD NOT SATISFY REQUIREMENT OF LAW WHEN THE CONSE QUENCE OF THE ASSESSEE NOT REBUTTING THE INITIAL PRESUMPTION IS S ERIOUS IN NATURE AND HE HAD TO PAY PENALTY FROM 100% TO 300% OF THE TAX LIABILITY. AS THE SAID PROVISIONS HAVE TO BE HELD TO BE STRICT LY CONSTRUED, NOTICE ISSUED U/S 274 SHOULD SATISFY THE GROUNDS WH ICH HE HAS TO MEET SPECIFICALLY. OTHERWISE, PRINCIPLES OF NATURAL JUSTICE IS OFFENDED/F THE SHOWN CAUSE NOTICE IS VOGUE. ON THE BASIS OF SUCH PROCEEDINGS NO PENALTY COULD BE IMPOSED ON THE ASSE SSEE. 60. CLAUSE (C) DEALS WITH TWO SPECIFIC OFFENCES, TH AT IS TO SAY, CONCEALING PARTICULARS OF INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. NO DOUBT, THE FACTS F THE SO ME CASES MAY ATTRACT BOTH THE OFFENCES AND IS SOME CASES THERE M AY BE OVERLAPPING OF THE TWO OFFENCES BUT IN SUCH CASES T HE INITIATION OF THE PENALTY PROCEEDINGS ALSO MUST BE FOR BOTH THE O FFENCES. BUT DRAWING UP PENALTY PROCEEDINGS FOR ONE OFFENCE AND FINDING THE ASSESSEE GUILTY OF ANOTHER OFFENCE OF FINDING HIM G UILTY FOR EITHER THE ONE OR THE OTHER CANNOT BE SUSTAINED IN LAW. IT IS NEEDLESS TO PINT SATISFACTION OF THE EXISTENCE OF THE GROUNDS M ENTIONED IN SEC.271(1)(C) WHEN IT IS A SINE QUA NON FOR INITIAT ION OR PROCEEDINGS, THE PENALTY PROCEEDINGS SHOULD BE CONF IRMED ONLY TO THOSE GROUNDS AND THE SAID GROUNDS HAVE TO BE SPECI FICALLY STATED TO THAT THE ASSESSEE WOULD HAVE THE OPPORTUNITY TO MET THOSE GROUNDS. AFTER, HE PLACES HIS VERSION AND TRIES TO SUBSTANTI ATE HIS CLAIM, IF AT ALL, PENALTY IS TO BE IMPOSED, IT SHOULD BE IMPO SED ONLY ON THE ITA.73/BANG/2014 PAGE - 7 GROUNDS ON WHICH HE IS CALLED UPON TO ANSWER. IT IS NOT OPEN TO THE AUTHORITY, AT THE TIME OF IMPOSING PENALTY TO I MPOSE PENALTY ON THE GROUNDS OTHER THAN WHAT ASSESSEE WAS CALLED UPON TO MEET. OTHERWISE, THOUGH THE INITIATION OF PENALTY PROCEED INGS MAY BE VALID AND LEGAL, THE FINAL ORDER IMPOSING PENALTY WOULD OFFEND PRINCIPLES OF NATURAL JUSTICE AND CANNOT BE SUSTAIN ED THUS, ONCE THE PROCEEDINGS ARE INITIATED ON ONE GROUND, THE PE NALTY SHOULD ALSO BE IMPOSED ON THE SAME GROUND WHERE THE BASIS OF THE INITIATION OF PENALTY PROCEEDINGS IS NOT IDENTICAL WITH THE GROUND ON WHICH THE PENALTY WAS IMPOSED, THE IMPOSITION OF PENALTY IS NOT VALID. THE VALIDITY OF THE ORDER OF THE PENALTY MUST BE DETERMINED WITH THE REFERENCE TO INFORMATION, FACTS AND MATERIALS IN THE HANDS OF THE AUTHORITY IMPOSING PENALTY AT T HE TIME THE ORDER WAS PASSED AND FURTHER DISCO VERY OF FACTS SU BSEQUENT TO THE IMPOSITION OF PENALTY CANNOT VIOLATE THE ORDER OF PENALTY WHICH, WHEN PASSED, WAS NOT SUSTAINABLE. 61. THE AO IS EMPOWERED UNDER THE ACT TO INITIATE P ENALTY PROCEEDINGS ONCE HE IS SATISFIED IN THE CAUSE OF AN Y PROCEEDINGS THAT THERE IS CONCEALMENT OF INCOME OR FURNISHING O F INACCURATE PARTICULARS OF TOTAL INCOME UNDER CLAUSE(C). CONCEA LMENT, FURNISHING INACCURATE PARTICULARS OF INCOME ARE DIF FERENCE. THUS, THE A 0 WHILE ISSUING NOTICE HAS TO COME TO THE CO NCLUSION THAT WHETHER IS IT A CASE OF CONCEALMENT OF INCOME OR IS IT A CASE OF FURNISHING OF INACCURATE PARTICULARS. THE APEX COUR T IN THE CASE OF ASHOK PAI REPORTED IN 292 ITR 11 AT PAGES 19 HAS HELD THAT CONCEALMENT OF INCOME AND FURNISHING INACCURATE PAR TICULARS OF INCOME CARRY DIFFERENT CONNOTATIONS. THE GUJARAT CO URT IN THE CASE OF MANU ENGINEERING REPORTED IN 122 ITR 306 AN D THE BE DELHI HIGH COURT IN THE CASE OF VIRGO MARKETING REP ORTED IN 171 TAXMAN 156, HAS HELD THAT LEVY OF PENALTY HAS TO BE CLEAR AS TO THE LIMB FOR WHICH IT IS LEVIED AND THE POSITION BE ING UNCLEAR PENALTY IS NOT SUSTAINABLE. THEREFORE, WHEN THE AO PROPOSES TO INVOKE THE FIRST LIMB CONCEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. SIMILAR IS THE CASE FOR FURNI SHING INACCURATE PARTICULARS OF INCOME. THE STANDARD PROF ORMA WITHOUT STRIKING OF THE RELEVANT CLAUSES WILL LEAD TO AN IN FERENCE AS TO NON -APPLICATION OF MIND 17. WE FIND THAT IN THE CASE BEFORE US ALSO, THE AO HAS NOT SPECIFIED THE RELEVANT PORTION OF THE CLAUSE (C) FOR INITIATING P ENALTY PROCEEDINGS U/S 271(1)(C) OF THE IT ACT AND THEREFORE, AS HELD BY THE HONBLE HIGH COURT, THE ASSESSEE COULD NOT HAVE REBUTTED THE INI TIAL PRESUMPTIONS FOR ITA.73/BANG/2014 PAGE - 8 INITIATION OF PENALTY WHICH IS SERIOUS IN NATURE. R ESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COU RT IN THE CASE OF M/S MANJUNATHA COTTON & GINNING FACTORY (CITED SUPRA) W E HOLD THAT THE NOTICE U/S 274 R.W.S.271(1)(C) IS INVALID. THE CONT ENTION OF THE LEARNED DR THAT IT IS ONLY A DEFECT WHICH IS CURABLE U/S 29 2B OF THE IT ACT, IS ALSO NOT ACCEPTABLE BECAUSE THE AO GETS THE JURISDI CTION TO LEVY THE PENALTY ONLY BY ISSUANCE OF A VALID NOTICE AND, THE REFORE, WHEN THE JURISDICTION IS NOT VALIDLY INVOKED, THEN THE CONSE QUENT PROCEEDINGS ARE ALSO NOT VALID. HENCE, IT IS NOT A PROCEDURAL IRREG ULARITY AS CONTENDED BY THE DR. 06. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT THE NOTICE U/S.274 R.W.S.271 FOR THE IMPUGNED ASSESSMENT YEAR WAS INVA LID. EX-CONSEQUENTI THE PENALTY ORDER IS SET ASIDE. SINCE WE HAVE DECIDED THE APPEAL ON LEGAL GROUNDS, GROUNDS RAISED ON MERITS ARE NOT ADJUDICATED. 07. IN THE RESULT, APPEAL OF THE ASSESSEE STAND S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22ND DAY OF J UNE, 2015. SD/- SD/- (N. V. VASUDEVAN) (ABRAHAM P GEORG E) JUDICIAL MEMBER ACCOUNTANT MEMBER