Manoj Sahadevrao Jadhav, Pune V. Income-tax Officer, Ward - 3(1), Pune

ITA 90/PUN/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9060 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 10-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 142(1); 274

Judgement Text

आयकर अपीलीय अिधकरण “ए” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकरअपीलसं. / ITA No.90/PUN/2018 िनधाᭅरणवषᭅ / Assessment Year : 2009-10 Manoj S. Jadhav, Flat No.602, Ishan Shrusti, Warje, Pune – 411052. PAN: AEOPJ 8160 N Vs The Income Tax Officer, Ward-3(1), Pune. Appellant/ Assessee Respondent / Revenue Assessee by None. Revenue by Shri S.P.Walilmbe – DR Date of hearing 28/07/2022 Date of pronouncement 08/08/2022 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal filed by the Assessee is directed against the order of ld.Commissioner of Income Tax(Appeals)-3, Pune dated 28.11.2017 for the A.Y. 2009-10, emanating from the order under section 271(1)(c) of the Income Tax Act, 1961 dated 29.06.2012. The assessee has raised the following grounds of appeal: “1. In the facts and circumstances of the case and in law, the learned CIT[A] ought to have condoned the delay in filing the appeal and ought to have decided the appeal on merits. 2. Without prejudice to Ground of appeal No.l above, the appellant submits that the delay in filing the appeal before the learned CIT[A] may please be condoned and the appeal be restored before the learned C.I.T.[A] with a direction to decided the appeal on merits. 3. The impugned penalty levied by the learned Assessing Officer being patently illegal, bad in law, arbitrary, perverse, without ITA No.90/PUN/2018 for A.Y. 2009-10 Manoj Sahadevrao Jadhav Vs. ITO, Ward-3(1), Pune [A] 2 jurisdiction and being devoid of merits the same may please be deleted. 4. Since the show cause notice issued by the learned Assessing Officer u/s 274 r.w.s.271[l][c] of the I.T. Act was vague as it failed to clearly spell out the charge of levy of penalty and did not point out/indicate the alleged default committed by the appellant, the impugned penalty levied by the learned Assessing Officer is patently illegal, bad in law, arbitrary, perverse, without jurisdiction and being devoid of merits the same may please be deleted. 5. Upon perusal of the assessment order it appears that the learned Assessing Officer initiated the penalty proceedings for concealment of income/furnishing inaccurate particulars of income, whereas the show cause notice did not specify the correct charge and finally the learned Assessing Officer levied the penalty under Explanation 1[A] to Section 271 [l][c] of the I.T. Act 1961, the impugned penalty is bad in law and without jurisdiction being violative of the principles of natural justice and hence the impugned penalty be deleted. 6. The appellant craves the permission to add, amend, modify, alter, revise, substitute, delete any or all grounds of appeal, if deemed necessary at the time of hearing of the appeal. 7. Any other equitable and just order that may be deemed fit and proper by the Hon. Bench may please be passed in the matter.” 2. The ld.Departmental Representative(ld.DR) for the Revenue relied on the orders of the Lower Authorities. No one appeared for the appellant. 3. We have heard ld.DR for the Revenue, studied the records. The only issue involved is penalty order under section 271(1)(c) of the Act dated 29.06.2012 passed by the Income Tax Officer, Ward- 3(1), Pune. We have perused the copy of the notice dated 29.12.2011. It is observed that none of the non-applicable words ITA No.90/PUN/2018 for A.Y. 2009-10 Manoj Sahadevrao Jadhav Vs. ITO, Ward-3(1), Pune [A] 3 have been struck-off by the AO in the notice. It is printed notice, the First para is about failure to comply notice under section 22(1) of the Indian Income Tax Act, 1922 or section 142(1) of the Income Tax, third para is about “have concealed the particulars of income or furnished inaccurate particulars of such income”. In this printed format, the AO has not mentioned which of the paragraph is applicable to the assessee. Neither the AO has struck-off the appropriate words, therefore, we are of the opinion that the penalty notice is defective. It is also observed that in the assessment order, the AO has not categorically mentioned whether the AO is initiating penalty for concealment of particulars of income or for furnishing inaccurate particulars of income. In the assessment order the AO has mentioned as under: Quote “Thus, the remaining amount of Rs.28,35,917/- is added back to the total income of the assessee. Penalty u/s 271(1)(c) is initiated for concealment of income/furnishing of inaccurate particulars of income.” Unquote. 3.1. Thus, there is no application of mind even at the stage of assessment by the AO. We find support from the order of Hon’ble Bombay High Court in Ganga Iron & Steel Trading Co. v/s Commissioner of Income Tax[2022] 135 taxmann.com 244 (Bombay)order dated December 22, 2021 held as under: “10. We find that the law as laid down by the Full Bench applies on all fours to the facts of the present case as in the show cause notice dated 12-2-2008, the Assistant Commissioner of Income-tax is not clear as to whether there was concealment of particulars of income ITA No.90/PUN/2018 for A.Y. 2009-10 Manoj Sahadevrao Jadhav Vs. ITO, Ward-3(1), Pune [A] 4 or that the Assessee had furnished inaccurate particulars of income. We therefore find that issuance of such show cause notice without specifying as to whether the Assessee had concealed particulars of his income or had furnished inaccurate particulars of the same has resulted in vitiating the show cause notice. Heavy reliance was placed by the learned counsel for the Revenue on the decision in Mak Data (P.) Ltd. (supra) to urge that the penalty contemplated by section 271 (1) (c) of the said Act was in the nature of civil liability and mens rea was not essential therein. The decision in Dilip N. Shroff (supra) having been held as not laying down good law in Dharmendra Textile Processors Ltd. (supra), it was submitted that the show cause notice issued in the present proceedings was liable to be upheld. It may be noted that all the decisions relied upon by the learned counsel for the Revenue were considered by the Full Bench while answering the issues referred to it on reference. The Full Bench having considered these decisions and having answered the question as regards defect in the notice under section 271(1)(c) of the said Act resulting in vitiating the penalty proceedings, we find ourselves bound by the answers given by the Full Bench. It would not be permissible for us to disregard this aspect and take a different view of the matter. Accordingly substantial question of law no. III is answered by holding that since the show cause notice dated 12-2-2008 does not indicate whether there was concealment of particulars of income or furnishing of incorrect particulars of such income, the same would vitiate the penalty proceedings.” 3.2. In the case under consideration also the AO has not struck the appropriate words in the penalty notice. Also as mentioned in earlier para, in the assessment order the AO has not mentioned whether the penalty is initiated for concealment or filling inaccurate particulars. Therefore, respectfully following Hon’ble jurisdictional High Court, it is held that the penalty u/s.271(1)(c) is not maintainable. Hence, the Assessing Officer is directed to delete the penalty u/s 271(1)(c). Thus, Ground No.4 of the appellant assessee is allowed. Since, we ITA No.90/PUN/2018 for A.Y. 2009-10 Manoj Sahadevrao Jadhav Vs. ITO, Ward-3(1), Pune [A] 5 have allowed Ground No.4, the other grounds become academic in nature and hence we have not adjudicated the other grounds. 4. In the result, appeal of the Assessee is Partly Allowed. Order pronounced in the open Court on 8 th August, 2022. Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 8 th Aug, 2022/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “ए” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.