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2021 (10) TMI 665 - AT - Income TaxPenalty u/s 271(1)(c) - defective notice u/s 274 - allegation of non specification of clear charge - Whether reasons for imposition of penalty i.e it was on account of concealment of income and was not on account of inaccurate particulars of income? - HELD THAT:- As in the reply to penalty notice , the assessee has mentioned that the Assessing Officer has initiated the penalty on the concealment of the amount and not for filling of inaccurate particulars of income, further the assessee sought time as the matter was pending before CIT(A) . Admittedly, in the present case, the income was not disclosed by the assessee in the return of income filed by the assessee, however, the income was brought to tax only after the search was conducted by the revenue authorities in the premises of the assessee and thereafter the assessee has surrendered the amount as mentioned in the assessment order and also in the penalty order, by declaring the amount in the return filled consequent upon the receipt of notice under section 153A. In our considered opinion, the disclosure of amount in the return of income filed consequent to receipt of the notice under section 153A, was not voluntary, rather assessee was forced to surrender, on account of the search carried out by the Department. In our view the penalty was rightly imposed by the assessing officer after being satisfying that the assessee was habitual defaulter and despite survey/search the assessee had not declared the income and had only declared income after the receipt of the notice. Whether the penalty can be deleted on the basis of non-specific notice? - It is pertinent to note here that in this case the assessee was having the clarity as to what charge were levelled in the notice i.e. concealment of income only and, therefore, the assessee had not asked the Assessing Officer to specifically mention on what basis he sought to impose the penalty. On the other hand, the assessee in the reply reproduced hereinabove, in the penalty proceedings, had mentioned that no penalty can be levied on account of concealment of income (refer para 3.3 supra). Since there was no ambiguity in the mind of the assessee on what basis the penalty sought to be imposed and after considering the reason for imposing the penalty the assessee has specifically mentioned in the reply as reproduced herein above in paragraph 3.3. Therefore, the question of deleting/scoring one of the clause is immaterial being innocuous in nature. Hon’ble Constitutional Bench in the case of Mohd. Farhan A. Shaikh [2021 (3) TMI 608 - BOMBAY HIGH COURT] had laid down the guidelines for quashing the penalty proceedings initiated on account of non-specific notice or non-scoring of, non-applicable reason for penalty. It is pertinent to mention here that the Constitution Bench has not discussed the facts of each cases much less cases identical to the case before us whether in such cases the penalty is required to be deleted or not. Thus we delete the penalty levied by the Assessing Officer in all the appeals filed by the revenue. Accordingly, the appeals filed by the revenue are dismissed and the cross objections filed by the assessee are allowed.
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