Assistant Commissioner of Income Tax, Jalandhar V. Sh. Yash Paul Khanna, Jalandhar

MA 36/ASR/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3558 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 10 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-05-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 22-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SATBIR SINGH
• Section: 271(1)(c); 274; 139(1); 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER M. A. No. 36/Asr/2019 (Arising out of ITA No. 645/Asr/2016) Assessment Year: 2008-09 Dy. C.I.T., Circle-3 C. R. Building, Income Tax Office, Near Sky Lark Hotel, Jalandhar Vs. Sh. Yash Paul Khanna, 587-R, Model Town, Jalandhar [PAN: AFZPK 8301A] (Appellant) (Respondent) Appellant by : Sh. Y. K. Sud, CA Respondent by: Sh. Satbir Singh, Sr. DR Date of Hearing: 13.05.2022 Date of Pronouncement: 14.07.2022 ORDER Per Anikesh Banerjee, J.M.: This miscellaneous application is preferred by the Revenue for recalling the order of the Income Tax Appellate Tribunal, Amritsar Bench, bearing ITA No. 645/Asr/2016 order pronounced on dated 15/02/2019. The petition was filed on dated 23/08/2019. 2. Tersely, we advert the fact of the case. The ITAT had adjudicated the appeal in favour of the assessee by considering the ground related defective notice of the MA No. 36/Asr/2019 DCIT v. Yash Paul Khanna 2 ld. assessing officer issued u/s 271(1)(c ) / 274 of the Act. The ITAT observed the following which is extracted as follows: - “5. The penalty provisions of section 271(1)(c) of the Act are attracted where the assessee has concealed the particulars of income or furnished inaccurate particulars of such income. It is also a well-accepted 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. The Hon'ble Karnataka High Court in the case of Manjunatha Cotton & Ginning Factory, 359 ITR 565 (Kar) observed that the levy of penalty has to be clear as to the limb under which it is being levied. As per Hon'ble High Court, where 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- application 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 postulate that the Assessing Officer was not sure as to whether he was to proceed 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-application 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 section 274 r.w.s. 271(1)(c) of the Act dated 30-08-2013 without striking off the irrelevant words, apparently goes to prove that the Assessing Officer 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 stereotyped manner without applying mind which is bad in law, hence cannot consider a valid notice sufficient to impose penalty u/s 271(1)(c) of the Act. Even the mind of the AO, while initiating the penalty proceedings, issuing notice u/s 274 of the Act and imposing the penalty itself, was not clear under which limb, the assessee had to reply and to defend its case, therefore we are of the view that under these circumstances, the penalty is not leviable as held by the various Court including Apex Court and hence, we have no hesitation to delete the penalty levied by the AO.” MA No. 36/Asr/2019 DCIT v. Yash Paul Khanna 3 3. The Ld. DR argued and submitted the following facts which is extracted as follows: - “(iii) That in the case of the assessee, a search was conducted on 11.12.2008 and therefore Explanation 5A to sec 271 (1) © was applicable which provides that in the given situations as per the Explanation, the assessee shall be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income. (iv) That in the cases covered under Explanation 5A to section 271(1), specification of particular limb of the section was not relevant being deeming provisions. (v) That since the assessee had not filed his original return u/s 139(1) of the Income Tax Act, 1961, the assessing officer had rightly imposed the penalty for concealment of particulars of income as no other provision was applicable. (vi) That on similar facts, the Coordinate ITAT Division Bench ‘ B ’ , Chandigarh in ITA No.254 & 255/CHD/2017 in the case of Sh. Munish Jain Vs. the DCIT, C C - I I I , Ludhiana after examining the judgments of Hon’ble Supreme Court and Hon’ble High Court of Karnataka in the case of M/s SSA’s Emerald Meadows, (201 6) 73 taxmann.com 248 (SC) that of Hon'ble Karnataka High Court in the case of Manju Natha Cotton & Ginning Factory, 359 ITR 565 (Kar), confirmed the levy of penalty as per Explanation 5A to Section 271 (1) (c) of the I . T . Act, 1961. (vii) That in view of the peculiar facts of the case, the judgments relied upon by the Hon’ble ITAT were not applicable to the facts of the case.” 4. The Ld Counsel of the assessee further argued that the judicial authority as full liberty to accept & reject the judgments in consideration of factual matrix of the case. There is no error apparent from the record of the order, passed by the ITAT. 5. We heard the rival submission & considered documents available in record. There is no mistake from appellant of the record of ITAT. Considering the MA No. 36/Asr/2019 DCIT v. Yash Paul Khanna 4 judgment of honourable Supreme Court in case of CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC), the power of Tribunal U/s 254(2) only to rectify the mistake apparent from the record. The petition for miscellaneous application of the revenue is rejected as there is no mistake on part of order of ITAT. There is no merit to adjudicate the same as there is no mistake apparent from the record. 6. In the result, the miscellaneous application filed by the Revenue is dismissed Order pronounced in the open court on 14.07.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order