2019 (2) TMI 51 - AT - Income Tax

Penalty u/s.271(1)(c) - Defective notice - non specification of charge - mandation of specification of correct limb - Held that - It is evident that at the time of initiation of penalty proceedings in the assessment AO has not mentioned any limb. However at the time of levy of penalty the AO mentioned that this is a fit case for levy of penalty in terms of Explanation 1 to Section 271(1)(d) for filing of inaccurate particulars. This manner of recording of satisfaction suggests the existence of ambiguity with reference to applicability of specific limb. It is a settled legal proposition that the AO is under obligation to specify the correct limb at the time of initiation as well as at the time of levy of penalty. This view of ours is fortified by the judgment in the case CIT Vs. Shri Samson Perinchery (2017 (1) TMI 1292 - BOMBAY HIGH COURT) as well as of CIT Vs. Manjunatha Cotton and Ginning Factory 2013 (7) TMI 620 - KARNATAKA HIGH COURT . In view of the above deliberation on this issue without going into the merits of the penalty we are of the opinion that the penalty order is liable to be quashed on this legal issue. - Decided in favour of assessee.

Summary

Issues:
- Appeal against order of CIT(A)-1, Nashik for Assessment Year 2007-08
- Addition of expenses for Fringe Benefit Tax (FBT) by AO
- Penalty levied under section 271(1)(d) of the Income-tax Act

Analysis:
1. The appeal was filed against the order of CIT(A)-1, Nashik for the Assessment Year 2007-08. The assessee, a firm engaged in supplying cloth, had filed a return of income with taxable fringe benefit. The AO made additions to the claimed expenses for FBT, resulting in a higher taxable amount. Additionally, a penalty was levied under section 271(1)(d) of the Act.

2. The assessee raised several grounds in the appeal, challenging the additions made for FBT and the subsequent penalty. The AO and CIT(A) had erred in their decisions according to the appellant, who highlighted that the expenses were incurred for business purposes by the partners of the firm, not employees. The appellant also argued that a lenient view had been taken in similar cases in judicial courts.

3. During the proceedings, no representation was made on behalf of the assessee. The Revenue defended the penalty, stating it was imposed for furnishing inaccurate particulars of income. However, upon review, the Tribunal found that the AO failed to record proper satisfaction while initiating the penalty proceedings and levying the penalty. The AO did not specify the correct limb for penalty at the initiation, creating ambiguity, which is against legal requirements.

4. The Tribunal referred to relevant case law to support its decision that the penalty order should be quashed due to the ambiguity in specifying the penalty limb. Consequently, the penalty was set aside on technical grounds, leading to the allowance of the assessee's appeal. The Tribunal directed the AO to delete the penalty, making the adjudication of grounds on merits unnecessary.

5. In conclusion, the Tribunal allowed the assessee's appeal on technicalities, highlighting the importance of proper recording of satisfaction by the AO in penalty proceedings. The decision was pronounced on January 30, 2019.